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• r

REPORTS OF CASE^

ABOUED AND DETERMINED

^nglisl €mxtB 0f C0mm0n f nk

WITH

TABLES OF THE CASES ARGUED AND CITED, AND THE PRINCIPAL

MATTERS.

EDITED BY

HON. GEORGE SHARSWOOD.

VOL. LXXIX.

OOMTAIMIHa

THE CASES DETERMINED IN EASTER TERM, TRINITT TERM AND VACATION,

AND MICHAELMES TERM AND YAOATION, 1851, AND HILARY TERM, 1853,

XIV. AND XV. VICTORIA.

PHILADELPHIA:
T. & J. W. JOHNSON & CO., LAW BOOKSELLERS,

VO. 686 0H18TMUT 8TBKKT.

1866.

Kntered, acoordiDg to Act of CongresB, in the year 1855, \>j

T. A J. W. JOHNSON

in the Clerk's OiBoe of tb-* Dintriot Court q^tUUMferft^I9K|ot of PenniyWania.

I tne year ii
' tb * Dixtriot Court Q^MBasferftOMiot of

•• ^

QUEEN'S BENCH
REPORTS..

JOHN LEYCESTER ADOLPHUS, of the Inner Temple, Esq.,

AND

THOMAS FLOWER ELLIS, of the Middle Temple, Esq.,

BARRISTEB8 AT LAW.

/KEW SERIES.

VOL. XVII.

CONTAINING THE CASES DETERMINED IN EASTER TERM, TRINITY TERM

AND vacation/ AND MICHAELMAS TERM AND VACATION, 1S51, AND

HILARY TERM. 1852. XIV. AND XV. VICTORIA.

WITH

TABLES OF THE NAMES OF CASES ARGUED AND CITED, AND THE
PRINCIPAL MATTERS. '

PHILADELPHIA:
T. & J. W. JOHNSON & CO., LAW BOOKSELLERS,

NO. 585 0HB8TMUT 8TRKBT.

1866.

JUDGES

THE COURT OF QUEEN'S BENCH,

DURING THE PERIOD OF THESE REPORTS.

The Right Hon. John Lord Campbell, Chief Justice.

Sir John Patteson, Knt.
Sir John Taylor Coleridge, Knt.
Sir William Wightman, Knt.
Sir William Erle, Knt,

attornet-general.
Sir Alexander Jambs Edmund Cockburn, Knt.

solicitor.general.
Sir William Page Wood, Knt.

TABLE

THE NAMES OF THE CASES

REPORTED IN THIS VOLUME.

VAQM

Ambergate, &c,, Railway Compa-
ny, Regina ». . 362, 957

Nottingham, Boston and

Eastern Junction Railway Com-
pany, Cort V, . . .127

Archibald, Sievewright v. 103

Armistead v, Wilde . . 261

Bannatyne, Regina v. . . 524

Barron, Burmester v. . 828

Basset, Regina v. . . 332

Beadon, Hope v. . . . 509

Beanmont v. Squire . 905
Bedford, London and North West- *

em Railway Company v, . 978

Beesley, Finney v. . .86

Biddulph v. Chamberlayne 351

Biram, Regina v. . . . 969

Blair v. Ormond .« . 423

Bowley, Chelsea Waterworks Com- i

pany t'. • • ^^^ I

Boyle V. Webster .950

Brierly v, Kendall 937

Brown, Regina v. . . . 833

Burmester v. Barron

pAsa

828

Burton, Driver v, . . ' .

989

Caldecote, Inhabitants of, Regina v.

Caudwell, Regina v.

503

Challis, Dpe V. ...

166

Chamberlayne, Biddulph v. .

351

Chelsea Waterworks Company v.

Bowley . . ' .

358

Chichester, Regina v. note (c) .

504

Clare Hall, Young v. .

529

Cockburn, Regina v. (16 Q. B.

480)

784

Colling, Regina D. . .

816

Cooke V. CunliflFe .

245

Corsar v. Reed

540

Cort V. Ambergate, Nottingham,

Boston and Eastern Junction

Railway Company

127

Cunliffe, Cooke ». . . .

245

Dale, Begina «. . 64 •
Be Haber v. The Qneen of Portu-
gal 171

(7)

Till

TABLE OF CASES REPORTED.

Depperman v. Hubbersty .
Doe V. Cballis

dem. Palmer v. Eyre .

Lansdell v. Grower .

Mence v. Hadley

Baddeley r. Massey

PA8B

766
166
366
589
571
373
• Ashbarnham, Earl of,
V. Michael ... 276

Newman v, Rosbbam 723

Evers ». Ward, (Post,

Vol. 18)
Driscoll V. Wballey . . 948
Driver v. Barton . . . 989
Dulwicb College, Regina v. . 600
Dunn, Wilton v. . . . 294
Dyson, HaU v. . . . 785

Eaaon, Henderson v., In Error . 701
East London Water Works Com-
pany V, Trustees of Mile End
Old Town ... 512

Eaton V. Swansea Water Works

Company .... 267
Edmundson, In re . . . 67
Edwards v. Martyn . . 693
Eyre, Doe dem. Palmer v. . 366

Finney v. Beesley
Flewker, Re .

86
note (a) 572

Gaskell, Regina v. (16 Q. B. 472) 524
Gee V. Manchester, Mayor, &o. of 737
Goodall, Massey v, . . 310
Gower, Doe dem. Lansdell v, . 689
Grange v. Trickett (2 E. & B. 395) 574
Great Northern Railway Company,

Salisbury, Marquis of, v. . 840
Western Railway Company,

Regina v. (15 Q. B. 379) . 309
Greene, Regina v. , . . 793
Griffiths, Hyatt v. . 505
Regina t;. . . . 164

Hadley, Doe dem. Mence v, . 571

Hall V. Dyson . ^ . . .785

Hammond, Regina v. . . 772

Hannah, Hirst v. . . . 389
Hartfield, Overseers of, v, Rotber-

field, Overseers of . . 746

Haslam, Regina v. . . 220

Hellier, Regina v. . . . 229

Henderson v. Eason, In Error 701

Roffeyr. , . 574

Hide, Mosley, Bart., v. . . 91

Hirst V, Hannah . . .383

HoUoway v. The Queen , 317

Hope 0. Beadon . . . 509

Hubbersty, Depperman v. . 766

Hyatt V. Griffiths . . . . 505

Ingham, Regina v.

884

Kendall, Brierly v, . . . 937
Kentmere, Inhabitants of, Regina

V 551

King V. Rochdale Canal Company,

In Error (14 Q. B. 136) . 495
Kirk, Webster v. . . . 944

Lancashire and Yorkshire Railway
Company, Regina v, (16 Q. B.
906, note (b)) . . .865
Latham v. Spedding . . 440
Lavey v. The Queen, In Error . 496
Leith, Regina v. (1 E. & B. 121) 784
Liddell, Tarleton v. . . 390

Liverpool, Overseers of, Wilson ». 303
Llanelly, Inhabita|^ts of, Regina v. 40
London and North Western Rail-
way Company v. Bedford . 978
Shrewsbury and

Birmingham Railway Company v. 652
Longhorn, Regina v, , , 77

Longwood, Overseers of, Regina v. 871

TABLE OF CASES REPORTED.

Mancliester, Inliabitaiits of, Regi-

na V note 46

Mayor Ac. of, Gee v. 787

, Mayor, Ac., of, v.

Manchester, Overseers of . 859
' Overseers of, Man-

chester, Mayor, &c., of, v. . 859
Marryat, Sims v. . . . 281
Martyn, Edwards v. 698

Massey, Doe dem. Baddeley v. , 878

V, Goodall . . 810

Memoranda .... 506
Michael, Doe dem. Ashbumham v. 276
Mile End Old Town, Trustees of,
East London Waterworks Com-
pany V, .... 512
Montague v. Smith . . 688
Moeley, Bart, v. Hide . . 91
Mozsy, Orchard v. (2 E. & B. 206) 948
Much Hoole, Overseers of, v, Pres-
ton. Overseers of . . 548

Orchard ». Moxsy (2 E. & B. 206) 948
Ormond, Blair v. . . . 423
Oxford, Guardians of, Regina v.

note (y) 457

P.
Pearcy, Regina v. . . . 902
Pocock, Regina ». . . 34

Poor Law Commissioners (In re
United Parishes of St. Giles
and St George), Regina v. .445

V. . note (^) 457

IVeston, Overseers of. Much Hoole,

Overseers of, v. , . . 548
Priest Button, Inhabitants of, Re-
gina V 59

Queen, The, Holloway v. . . 817

Lavey v. . 496

South Eastern Rail-
way Company v. 485

of Portugal, De Hnber v. 171

of Spain, Wadsworth v, 196

VOL, XVII. — 2

Reed, Corsar v.

. 540

Reeves v. White .

995

Re Edmundson

. 67

— Flewker .

. note (a) 572

R^ina v, Ambergate, &c., Rail-
way Company . 362, 957

V. Bannatyne . . 524

V, Basset ... 832

V. Biram . . . 969

V, Brown ... 833

V, Caldecote, Inhabitants

of 52

V. Caudwell . . .503

V, Chichester . note (c) 504

i;. Cockbum(16Q.B.480)784

w. Colling. . . 816

V, Dale ... 64

V. Dulwich College . 600

V. Gaskell (16 Q. B. 472) 524

V. Great Western Railway

Company (15 Q. B. 379) . 309

V. Greene . . 793

v. Griffiths . . .164

V. Hammond . . 772

V, Haslam . . .220

i;. Hellier . . 229

V. Ingham . . 884

V, Kentmere, Inhabitants

of 551

V. Lancashire and York-

shire Railway Company (16 Q.

B. 906) . . . note (6) 865-

V. Leith (1 E. & B. 121) 784

V. Llanelly, Inhabitants of 40'

v. Longhorn . 77

V. Ijongwood, Overseers of 871

V. Manchester, Inhabitants

of note 46

V, Oxford, Guardians of

note (^) 451

V. Pearcy . . . 902,

V, Pocock . . 84

V. Poor Law Commission-

ers, In the Matter of the United
Parishes of St. Giles and St.
George .... 445
V. . note (^) 457

TABLE OF CASES REPORTED.

B^na V, Priest Hutton, Inhabit-
ants of .... 59

v. Robinson . . 466

V, Rochester, Dean and

Chapter of . . . 1

V. Rowlands . . 671

V, St. Andrew, Holbom,

Inhabitants of . . . 746

V. St. Giles without Crip-

plegate, Inhabitants of . 636
t;. St. James, Westmin-
ster, Oovemors of Poor of 474

— ^ V. St. Martin's in the

Fields, Guardians of .149

■ V. St. Peter, Barton upon

Humber, Inhabitants of 680

V, Scaife ... 238

V, Shavington cum Gresty,

Inhabitants of . . . 48
17. Southampton Dock Com-
pany .... 83

V, Waverton, Inhabitants of 562

1;. Wing . . . « . 645

V. York, Newcastle and

Berwick Railway Company (16
Q. B.886) ... 244
Robinson, Regina v. , 466

Rochdale Canal Company, King v.

In Error (14 Q. B. 136) . 496
Rochester, Dean and Chapter of,

Regina v 1

RofFey t^. Henderson 574

Rotherfield, Oyerseers of. Hart-
field, Overseers of, v. , 746
Rowlands, Regina v. . 671
Rusham, Doe dem. Newman t;. 723

St. Andrew, Holbom, Inhabitants
of, Regina ». . . . 746

St. Giles without Cripplegate, In-
habitants of, Regina v. . 636

St. James, Westminster, Govern-
ors of Poor of, Regina v. . 474

St. Martin's in the Fields, Guar-
dians of, Regina v. . 149

St Peter, Barton upon Humber,

Inhabitants of, Regina v.

630

Salisbury, Marquis of, v, Grtot

Northern Railway Company 840
Scaife, Regina v. . . . 238
Shavington cum Gresty, Inhabit-
ants of, Regina v. . . 48
Shrewsbury and Birmingham Rail-
way Company v. London and
North Western Railway Com-
pany ..... 652
Sievewright v, Archibald 103
Sims V. Manyat . . 281
Smith, Montague v, . . 688
Southampton Dock Company, Re-
gina V 83

South Eastern Railway Company

V. The Queen, In Error . 485

Spedding, Latham v. . 440

Squire, Beaumont v. 905

Swansea Waterworks Company,

Eaton V 267

Tarleton v. Liddell . . .390
Taylor, Tetley v. (1 E. & B. 521) 645
Tetley v. Taylor (1 E. & B. 521) 645
Trickett, Grange v. (2 E. &B. 395) 574

Wadsworth v. The Queen of Spain 196
Ward, Doe dem. Evers v. (Post,

Vol. 18)
Waverton, Inhabitants of, Regina v. 562
Webster, Boyle o. . . . 950

V, Kirk ... 944

Whalley, Driscoll v. . . . 948
White, Reeves v. . . 995

Wilde, Armistead v. . 261

WUson V. Overseers of Liverpool 303
Wilton r. Dunn ... .294
Wing, Regina v. . . . 645

York, Newcastle and Berwick
Railway Company, Regina v.
(16 Q. B. 886) . . .244

Young v. Clare Hall . . 529

TABLE OF CASES CITED.

PAoa

Adaini..London«idBkckw.UBaUw»yComOj,^^^^ j^^ ... 845

P«»7 J

Adderley v. DUon *. 1 Sim. A Sto. 607 388

Alboo V. Pyka 4 M. A O. 431 1008

Alaxaoder «. MUton S Oro. A Jar. 424> S. 0. S Tyt. 496 . 776

«i Porter 1 DowL P. C, N. a 2»» . . .604

AUen V. GreeofiU 4 Com. B. 100 776

Aodenon v. Cbapmaa 6 M. A W. 488 364

V. MmrtindiOe 1 Bm t» 497 990

Andrewi v. Falhtm 1 Vm. Sen, 421 924

«. HaUes 2 B. A B. 849 S76

Anonymoos - Gary, 29 Bd. 1820 716

Godb. 826 289

16Jiiitioeofth«P6M«,49,JML26,1861 884

7Q.B.798 . . .679

Bkinn. 280 716

1 Ventr. 286 ..'... . 188

Areher e. Bamford 1 Car. A P. 60 690

Argol V. Cheney Lateh. 82 417

Arnold 9. Dimadale 2 B. A B. 680, 601 . * • • .284

Arandel, I>aino» v. Barl of Pembroke I>y«r> 268 b. 809

Adin w. Parkin 2 Borr. 666 169

Aspray v. LoTy 16 M. A W. 851 998

Aaton Union, Re' 6 A. A B. 784 156

AUomey-Oeneral 9, Bnlwiefa College • . 4 Beav. 255, 261 616

'■ 9, Middleton . . . . 2 Yea. 827, 828 27

ATelynv.Ward 1 Yes. Sea. 420 924

■ «. Browne 2 Hardr. 316 89

BaUey v. Lloyd 6 Boaa. 880 254

Baokof Bnglaad V. Anderaon .... 3 New Ca. 589, 666 . . .520

Baakav. Self 3 Taunt 234 (note) . . 183,201

Barker V. Barker 2 Simona, 249 740

e. Coeka .3 Bearan, ^2 . 1 • • . 744

Bateman V. Joaeph . \ . . . . 12Baat»483 830

Baaly V. ai«enalade 2 Cro. A J. 61 430

B«ekwith> CaM 2 Rep. 56 b 419

Beonett V. Abnrrow 8 Yea. 609 254

Bfrrhnan 9. Gilbert Bamea, 203 697

(11)

TABLE OF CASES CITED.

BeTan 9, Qeihing

BoTeridge w. Baiyia ..••..

BeTerley v. The Linooln Gas Light and Coke
Company

BeynoD «. Jonef

Birmingham «ad Oxford Janotion Railway Com-
pany V. The Qaeen

Blair v, Ormond •••«..

Bleaden v. Cbarlea

Bold o. Rayner

Boodle V. Campbell

Bonverie o. Milei

Bradley o. Copley

Brietol Poor, OoTeraon of, 9. Wail .

Brocklebank v. Whitehaven Jnnetion Railway
Company

Brookes 0. Earl of Rirtn

Brooks V. Rogers ••••.•

Browing «. Aylwin

Brace V. Wait

Branswick, Dnke of, 9, King of Hanover .

Bryan dem. Child «. Winwood .

Bryteer o. Thames Haven Book and Railway
Company . • . • . « •

Buchanan v. Rocker •

Bargees «. MeirlU

Bttrkinshaw «. Birmingham and Oxford Jvndtloa
Railway Company . • . . «

Barrel's Case • • • •

PAQI

SQ.B. 740 486

3 Camp. 262 . . • . . . SSO^

I 6 A. AS. 820 141

15 U. A W. 506 .

. 606

. . . 860

. \ .480

. 008

1 M. A W. 848, 8. C. Tyr. A 0. 820 . 118

7 M. A O. 386 200

. 808

. . . 042

. . . 162

> 16 Q. B. 647, note (6)

14 Q. B. 732 .
7Bing.246 .

1 B. A Ad. 88

1 Com. B. 686 • . • •

6A. AB. 1* • • •

16 Sim. 682 846

Hardr. 608 26

1H.BL640 047

7 B. A C. 204 127

1 Man. A G. 1 101

6 Beav. 1, S. C. 2 Ho. Lords Ca. 1 183, 200
1 Taant 208 . . . ... .376

2Ezoh. 640 188

1 Camp. 63, 0 East* 102 ... 102
4 Taant 468 063

6Exeh.476 846

6 Rep. 72 a . • 726

Callander 9, Howard . • • •
Cambridge Union, Re • • •
Camden, Lord, v. Home • . •
Campbell 0. The Qaeen
Camatic, Nabob of, «. Baft India Company
Cartwright v. Oreen . . • .

Cates V. Knight

Chalk V. Deacon ....

Chandler 0. Parkes ....
Chaney v. Payne ....
Chapman o. Speller ....
Chelsea Waterworks Company v. Bowley
Chesterton v. Farlar ....
Chorlton, ConsUbles* Ao., «. Walker .
Clarke «. Denton ....
Clark r. Sharpe ....

Clayton e. Lowe ....

V. Wilton, Earl of .

Clere, Sir Edward, Case of

Clifford V. Beaamont ....

Oobbett V. Grey

Cocks V. Edwards ....

M Com. B. 200

0 A. ^ E. 024, note (a)
4 T. R. 382, 1 H. BU 476
UQ.B. 706,811 .

1 Ves. Jan. 871, 386, note (64)
8 Ves. 406
3 T. R. 442 .

6 B. Moore,* 128
3 Esp. N. P. 0. 76
IQ. B. 712 .

14 Q. B. 621
17 Q. B. 868

7 A. A E. 713
10 M. A W. 742
1 B. A Ad. 02

3 M. A W. 166

6 B. A Aid. 636

6 M. A 8. 67 (note)

6 Rep. 17

4 Rnss. 826 .

4Ezch. 720 .

2 DowL P. C. N. S. 66

436
707
186
324
211
066
1008
606
062
682
2S8
610
186
610
186
820
730
410
264
026
688
387

TABLE OF CASES CITED.

xui

CoUj, Bx parte ,

PA«B

CokbrookQ «. Tickal^ 4 A. A B. 916 617

f 4 New SeM. Ga. 607. BiOl ConrW HU.

t T. 1861 470

2 Q. B. 680, 609, 000 .... 690

7T. R.881 140

1 Ld. Raym. 846 300

. . . 4 M. AW. 784 06

ISSim. 606 . . • . • . 410

7T. Ii.666 047

Oooeh «. Goodmam

Cook «. Jenninfi

— ^ •• IilMDOa ■•••••
ConaU«.Caetell . . . . '.

Ootterell v. Homer

Oowley V. Dulop*

Cox p. Midland Goantiei BaUway Company

Cnddoek'B GaM

Crake o. Powell

Crup V. Banbary . • • . .
Camming v. Boebaek ^ • • • •
Catbill « Kingdom 1 Exoh. 494

8Bxeh.268 143

3 Den. Gro. Oa. 81 • • • .666

2E. AB.310 441

8 Bing. 894 ..... . 1008

Holt N. P. G. 173 108

1008

Da Cofta «. Keir

Dale V. Pollard

Daoiel v. Bany

Dtaiah Ship Noyiomhed, Gaae of . . •

Dtrley v. The Queen

Dane v. Jones • •

Day e. Panpierre .^

V. Savadge

Deacon, Ex parte ••.•••

D« Bode, Baron, Caaa of

De la Torre w, Bemalef . • . • •
De Batsen «. Fair ••••••

Dimes'! Gaae

9. Grand Janetion Ganal Gompany, Pro- )

prieion of }

Dodwell «. Gibba

Doe «. Harlow

It Wright

- — dem. Fellowea e. Alfted • • • .

Wetherell ff. Bird . . . •

Goody 9. Garter . . ' .

• Bari of Bgremoni «. Goortenay .

Gadogan v. Bwart ....

Palmer v. Byre • • . . •

Morrison v. GloTer . • • •

— Uoyd V, Jones

Richards e. Lewis ....

Otley V. Manning ....

Golelongh o. MulUner ....

Harrison «. Morrell . • . .

Armistead v. North Staifordshire Rail. 1

way Gompany i

DaTy V. Oxenham ....

— Lewis e. Rees

Nowell 9. Roake ....

8 Ross. 860 .
10 Q. B. 604 .
4 Q. B. 69 .

7 Ves. 698 .

13 Gl. A Fin. 630

8 B. A Aid. 166
18 Q. B. 803 .
Hob. 86, 97 .
6 B. A Aid. 769
8 Q. B. 308, 13 Q. B. 880

1 Hot. Sapp. te Vesey, 149
4 A. A K 68

14 Q. B. 664 .

8 H. Lords Ga. 769, 787

3 Gar. A P. 616 '
12 A. A B. 40

10 A. A B. 768

I Dowl. A L. 470
7 a A P. 6 .
9Q.B. 868 .

11 Q. B. 703 .

7 A. A B. 636
17Q.B. 866 .
16Q.B.108 .
16 M. A W. 680

II Gom. B. 1086

9 East, 69
1 Esp. N. P. G. 460

8 Gar. A P. 610

16 Q. B. 636 .

7 M. A W. 181
6 Car. A P. 610

8 Bing. 497 .

. 739

. 838

. 864

. 186

. 164

. 685

. 186

. 36

. 607

. 187

. 189

. 378

. 36

. 169

. 168

. 167

. 610

868,880

. 408

. 740

. 878

. 1008

. 876

. 737

407, 736

. 878

. 876

846

693
876
264

XIV

TABLE OF CASES CITED.

Doe dem. Barentook «. Rolfe

Barnoi V Rowe .

-^-^— Lifford V, Sparrow

' Higgs V, Tenry .

Marlow «. Wiggins

• Danraven *. WilliamB

• Jonei V. Williamf

• Daniel «. Woodroffe

Doo V. London and Oroydon Bailway Campany
Dore V. Gray .•••••
Doaglai V. ForresI . . • • •
Daek v. Barton • . • • •

Dudley, Sir Robert Caae of . • •

8 A. A E. 650, 672
4 New Oa. 737
18 Bast, 859 .
4 A. A E. 274
4 Q. B. 867, 876
7 Car. A P. 382

6 A. A E. 291

2 Ho. Lords Oa. 811

1 RaiL Ca. 257

2 T. R. 858. 865
8 Ring. 686, 702
1 L. M. A P. 201
8 Inst 231 •

PAttB

. 410

. 739

. 592

. 597

. 876

. 867

. 406

. 840

. 808

. 192

• 949

. 809

. Eason «. Henderson ,

East Lincolnshire Railway Aet, In rs

Bde V. Jaekson

Edgar o. Halliday

Edinbargh and Glasgow Railway Company «.

Monklands Railway Company
Edwards v. Grand Janetion Railway Company

V. Ronrke

Egerton v. Mathews

Eggington's Case ••...•

Elderton v. Emmens

Elton V. Larkins ••••••

Elwes V. Mawe •

Emmens v. Elderton •

Evans v. Elliott

*. Swete

12 Q. B. 986 707

lSim.N. S. 260 852

Forteso.345 190,214

1L.M. AP. 867 949

12 Ca. Court Sess. (New Series)^ 1804 . 850

1 Mylne A C. 650 665

1 T. R. 4S6 . ' 696

6 East, 807 107

2 A. A E. 717, 731, note (a) . . . 838

4Com. B. 479 141

5 Car. A P. 385, a C. 1 M. A Rob. 196 610

8 East, 88 684

4 Ho. Lords Ca. 141

0A.AB.842 • • • . .298

2 Ring. 326 543

Fellowes *. Clay • « • • • . 4 Q. B. 818 • • • • • .535

Fenn V. Bittleston 7 Ezch. 152 •••••. 941

Fenton e. Hoghes 7 Ves. 287 . • • • • .966

Fit^ames V. Moy 1 Sid. 188 422

Fletcher v. Calthrop 6 Q. B. 880 836

Flewker, Re 17 Q. B. 572, note (a) • . . . 572

Flight J. Cook 1 Dowl. A L. 714 694

V. Thomas 11 A. A E. 688, 8 CL A Fin. 231 . . 271

Forth V. Chapman . . • • . .IP. Wms. 663 743

Frances's Case 8 Rep. 91 b . • • • . .139

Freemen v. Rosher ••«... 6 DowL A L. 517 573

Frost V. Lloyd 9 (J! B. 180 679

Gare «u Gapper .

GUlingham *. Waskett

3 Bast, 472 .
18 Price, 484

191
487

TABLE OF GASES CITED.

PAU

Olorer v. London u^ North-

•Weetem RaUway

5 Ezeh. 88 •

. 138

Company

•' *

9. North Staffordshire Bailway Companj

16 Q. B. 912 . .

.. 72

Qoooh'f Case . .

5 Rep. 60 a .
15Q.B. 578,582 .

. 409

Goodman r. Pooock .

. . . .

. . 141

Ooodright dem. Hnmphreya w.

Moeea

. 2W. BL1019

. 410

Goom 9, AIIaIo .

• • •

. 6 B. A C. 117

. 109

Gordon v. Hsrper

• ■ •

7A. AE.9 .

. 942

Goald V. Gapper

. 5EMt,345 .

. 191

r. WiUiama

■ • •

. 4Dowl. P. C.91 .

. . 788

Gooldsworth v. Knighta

• . .

11 M. A W. 337 .

. 595

Grand Janetion Railway Company «. Dimea

. 12 BeaT. 83, 2 Maon. A G. 285

. 26

Grant v. Fletcher

. 5 B. A C. 436

. •

. 109

Gray v. The Queen

. 11 CI. A Pin. 427 .

• •

. . 75«

Greene v. Cole .

2 Wms. Saand. 250 o,

6th od.

. . 682

Green v. Gatewick

. Bull. N. P. 243 .

. .

. 241

Gregif «. Welle .

. 10 A. A B. 00

. 15 Q. B. 957 . .

•

. 585

. 688

Gripper e. Bristow •

. 6M. AW.807

. 387

Ha^e V. Hall .

5 Man. A G. 690 .

. 690

Haldane v. Beaoolerk

3 Exch. 858 ... .

. 690

Hale? r. Margernm . •

. 8Ves. 299 . . , .

. 925

Haigh V. Proet .

7 Bowl. P. C. 748 . .

. 386

HaU«.Maule . . ,

7 A. A E. 721

. . 191

Hallen v. Rander

1 Cro. M. A R. 266, S. C. 8 T

yr.o

59 . 585

Hand «. Daniels

1 L. M. A P. 420 . .

. 949

Harington v. Macmorris

. 5 Taunt 228 .

. 184,201

Harrison, Henry, Case of .

12 How. St Tri. 833, 851, 2
. 6M. AW. .W .

. 241
• 81

Hart V. Nash

2 C. M. A R. 837^8. C. 6 Tyr

.955

. 435

Haslope e. Thome

. IM. AS. 103 . .

. . 775

Hatton V. Isemonger .

. 1 Stra. 641 .. .

. 183

Hawee v. Forster

. 1 Moo. A Rob. 368, 372

. 106

Hawl^er v. Field

, 1 Lowndes, M. A P. 606

. . 281

. 15 Sim. 303 .

. . 710

Heyman v. Neale . .

2 Camp. 337 .

. 108

Hibblewhite «. M'Moiine .

6 M. A W. 200 .

. 288

. 2 Hare, 355, 372 .

. 925

Hoare v. SiWerlook .

12 Q. B. 824 . .

. 684

Hoehster v. De la Tour

2 B. A B. 678 . .

. 140

5T.R.236 . .

. . 404

Holerolfs Case .

Moore, 486 .

. 924

Hollis 9, Palmer

. 8 New Ca. 713

. 439

Holt «. Meddowcrofk .

. 4M. AS.467

. 690

Horn 9. Gilpin •

. Amb.255 . .

. 716

Home 9. Earl Camden

2 H. Bl. 583 . . .

. 185

Hooper «. Stephens •

. 4 A. A B. 71 . .

. 436

9. Treffey

. 1 Exch. 17 .

. 993

HortoB «. Beekman .

. 7T.R.760 . .

. 186

Hoole 9, Baxter

. 3 East, 177 .. .

. 947

X71

TABLE OP CASES CITED.

HowdoD, Lord, «. Simpmii
Howis 9. Wiggioa . •

10 A. A B. 807
4T. R.7U .

PAOI

602, 780
. 047

Jaffray w, Frabaln

Jewison p. Dyson .

Johnson's Case . •

V. Legard

V. Lord ^

— — — "*- V. Shippon .

Jones, Lessee of Moffett, v.

V, Ashnrst

V, Harrison

». Waite .

— V. WestcoQib .

Jones and Jamesi Re

WhiUaker

6 Bsp. N. P. G. 47

0 M. A W. 540, 508, Ao.

Gro. Jae. 610

6 M. ik S. 60 .

Moo. A M. 444

. 2 Ld. Raym. 082 .

{Longfield and Townsend's Irish
Rep. 141 ....
. Skinn. 857 ....
. 6 Bzeh. 320 .

5 New Ga. 341, 847, 0 CL A F. 101
. 1 Sq. Ga. Abr. 245
. 1 Lowndes, M. A P. 66

Exch.

055
615
568
410
775
185

781
81
441
780
024
188

G. 5 Tyr. 587 ,

Kaye e. Bolton 6 T. R. 134 .

Kemp V. Derrett 3 Gamp. 500 .

Kempland v. Maeanlay 4 T R. 436 .

Key V. Gotesworth 7 Bzeh. 505 ,

King e. Sears 2 C. H. A R. 48, S.

e. The Qneen 7 Q. B. 705 .

The, V. Bishop of Gbester . . . . 1 W. BL 22 .

V, .... 1 Stra. 707, S. G. 1 Bam. K. B. 52

Kinnersley v. North Staffordshire Railway Gom- ) ^ » r^ nu a^A

p»ny i

Kirby v. fiickson 1 L. M. A P. 364 .

700
502
543
772
314
670
24
26

846

040

Lamprell v. Billericay Union .... 3 Ezeh. 283, 306

Langston v. Langston 8 Bligh. N. S. 167

e. Pole 5 Bing. 228

Larkin v. Marshall 4 Ezeh. 804

Lawford v. Gardiner .•••.. Barnes, 06

Lee V. Ghaloraft 3 Phillimore, 630, 648

Lichfield, Mayor of, v, Simpson . » . 8 Q. B. 65

Lilley v. Harvey 5 DowL A L. 648

Lindsay o. Leigh 11 Q. B. 455 .

Litchfield «. Ready 5 Ezeh. 030 .

Lomaz v. Landells ...... 6 Gom. B. 577

London, Mayor, Ac., of, o. Master Wardens, Ac., ) « M A Rob

of Pewterers' Company j

Lnoas v. Jones . • . . . . . 5 Q. B. 040

Lnokett v. Knowles 2 Com. B. 187

Lueking v. Denning 1 Salk. 201 .

Ludlow, Mayor of, v. Charlton . . . . 6 M. A W. 815

,400

810
025
025
605
607
824
1006
443
683
303
66

274

435
770
202
143

TABLE OF CASES CITED. xyu

PAaa

irClnra e. Ripl^ 6 Bzeh. liO 136

ITDaaiers Case F<»t C. L. 121 32S

MaeheU 9. Clark ...... 3 Ld. Raym. 778 408

Kaekintoth 9. Trotter 3 M. ik W. 184 58S

irMahoo«.Biifehen f 1 Purton Cooper, 467, S. 0. J PhiUipi'a

I Rep. 127 710

liaime. Moon R7. ik M. 249 . . . . 820

Ifartiii dem. TregonweU v. StraehM • . 8 T. R. 107, note 417

Haiten v. Lowia • . ^ . 1 Ld. Raym. 50 200

Medina v. Stoaghton 1 Balk. 210, 8. 0. 1 Ld. Raym. 508 . 203

MiUerv. Hay 3 Bxoh. 14 66

Minehin e. Clement 1 B. ik Aid. 262 648

Mondal v. Steele 8 M. A W. 300 87

Monkleigh, Bx parte 5 D. A L. 404 . . » .632

Montagoe, Lord, v. Dadman . . • , 2 Yes. Sen. 396 . • # • . 964

Momria e. Glaai 2 M. A S. 444 . ^. . .964

Moriey v. Attenborongh 3 Bxoh. 500 288

Lord, Caie of 6 How. St. Tri. 769, 771, 6th reflation 240

Monriaon v. Olover 4 Bxoh. 430 1008

Mom «. Oallimore 1 Dong. 279, 1 Smith's Lead. Ca. 310 . 297

L Cowp. 161, 172, 3, S. C. 1 Smith's Lead.
Ca. 863, 368, b, e, (3d ed.) . . 200

Moonaon v. Redshaw 1 Wms. Sannd. 196, d, e, 6th ed. . .646

Monnnioy 0. Collier 1 B. ik B. 630 302

Manden «. Dake of Bmnswiok . . . . 10 Q. B. 656 189

Morray e. Bast India Company . • 6 B. A Aid. 204 946

o. Jones . . , . • .2 Yes. ik B. 313 984

9. Mann 2 Exeh. 638, 641 .... / 408

V. Reevse 8 B. A C. 421. 788

Moetjn e. Fabriga» j^^

• N.

Kathans «. Giles 6 Tanni 668 . . • . • . 406

Nerot V. Wallace 3 T. Jl. 17 790

Kewboold e. Coltmaa 6 Bxoh. 189 811

Sewton e. Boodle '. 9 Q. B. 948 698

Kiaiv. BaTis 4 Com. B. 444 . . . . .761

Kigfatingale «. Barl Fenert . . 3 P. Wms. 206 417

aOennen e. The Qaeen 11 CL A Vin. 166 • . . 822,667,678

Osioas V. Tyrer .IP. Wms. 343 400

Ofthard 9, Moxsy 2 B. A B. 206 441

Osborne «. Harper 1 Bast» 497 990

Pftgee.Hayward 2 Salk. 670, 8. C. Pig. Bee. . . 176, OU

P^e 9. Strand Union 8 Q. B. 326 142, 810

Pttksre. Carter ...... 4 Hare, 400 730

VOL. xvn. — 8 B 2

xmi

TABLE OF CASES CITED.

Parry «. DaTiei 1 L. M. A P. 379 .

Pardngton v, Woodaook 0 A. A B. 690

Payne, Bz parte 5 D. A L. 679

PenUm v. Robart 4 Bap. N. P. G. 33, 8. C. 2 East, I

PA«B

. 949
. 298
. 1009
. 584

Peto V, Bladei 6 Taunt 657 290

Philipi V. Bury Skinn. 447, 8. C. 2 T. R. 846 . 23

PhiUipi V. Pearoe , 6 B. ik C. 433 692

PhUlpotta V. Erana 6 M. A W. 475 136

Phyiltian^ College de, Case of . . LHt Rep. 212, 213 .... 809

Piokard e. Seaifl 6 A. A B. 469 169

PiekBtook e. Lyiter S|C^fi.371 404

Pitman v. Woodboiy 8 Exoh. 4 597

Pitts V. Beckett 13 M. A W. 743 Ill

PIaneh4 w. Collmni 8 Bing. 14 140

Points V, Aitwood 6 Com. B. 88 . . • . « 808

Pope ». Biggs 9 B. A C. 245 297

Portngal, Qaeei of, e. 01yn . 7 €L ik F. 406 966

Posteme v. Hanson 2 Baond. 60 565

Powell 9. Divett '. 15 East, 29 113

V. Shaw .

Pownal V. Perrand
Poynts, Sir Niobolas, Case of
Prodgers v, Langham
Prndhomme «. Fraser
Pryor v, SWaine
Pomell V, Young

17 Q. B. 571 . . . note (a) 572

6 B. A C. 489 946

Cro. Jaei214 568

1 Sid. 133 .782

2 A. A E. 645 353

2DOWLAL.37 387

3 M. AW. 288 . . • : .441

Rul.

Regina «. Aberdare Canal Company .

V. All Saints, Derby

*. Ambergate, Ae., Railway Company

V. Badeock • . • •

V. Bannatjme . .

V. Bamsley • . . •

V. Barrett ....

V. Basset ....

». Binney ....

«. Birmingham and Oxford Jonotion

way Company ....

9. Bolton . . • •

V. Bristol, Goremor of Poor .

V. Baehanan . ' .

9. Caldeeote . . • .

V. Caledonian Railway Company

*. Cambridge Oas Light Company

V. Charlesworth

V. Cheltenham Commissioners

— *- w. Chester, Dean and Chapter of
— '— * V. CoUingwood •

. 9. Coward ....

-^-^ V. Daniell ....

14Q.B.854 :
14 Q. B. 307 .

1 E. A B. 372
17 Q. B. 362 .
6Q.B. 787 .

2 L. M. A P. 213
12 Q. B. 193 .

2 Car. A Kir. 343

17 Q. B. 332 .
1 B. A B. 810

[ 15 Q. B. 634 .

1 Q. B. 66

13 Q. B. 406 .
8 Q. B. 883 .
17 a B. 52 .
16Q.R. 19 .
8 A. A E. 78 .
2 L. M. A P. 117
1Q.B.467 .

15 Q. B. 513 .
2 Ld. Raym. 1116

16 Q. B. 819 .
6 Mod. 99, 8. C. 1 Salk.

880

. 26

551, 640
365, 959
. 959
558, 868
. 535
. 768
. 37

232

853,966

. 70
. 457
. 1008
748,768
. 488
. 876
. 900
. 26
. 23
. 688
. 776

TABLE OF GASES CITED.

SIX

Rtglna «. Deighton

9. DodsoB • . ^ .

— 9. EMtern Coontiof Railway OompaDy

- V. EMt London Waterworks Company
- «. Bast Stonehonse

- V. Bodesall Biorlow

- V, VfH

- V. Oomperti

- V. Grafton, Dnke of . • .

- V. Great Western RaQwaj Gompanj

- V. Grimshaw

- «. Gnesl

- V. Gnttridge

- V. Hagan

- V. Hainse

.«. Halilkx

- V. Harrowgate OommIssioD«n

- V. Holbeek

- V. Hunt

- V. Irwin ..••..

- V. Jnstiees of Glamorganshire
- «. » Hertfordshire .
. 9. Middlesex

- 9. Survey •

. V, Wiltehire .

- e. Kendall

■ e. Kentmere ••••»•

9. Eenriek ......

—a — 9, Kidwelly and Uanelly Oaaal and Tram-

road Company

e. Leaden Roothing • • . •

V. Leith .

«u LlaneUy

«. London and North-Weetetn Railway

Company

V. Londondeiry and Cdeiahtie Railway

Company

■ V. Longwood

9. _^-^ Chavohwardens and Over-

5Q.R.896 .

9 A. ik B. 704
2Q.B.347 .

10 A. A E. 631
Q. B., June 6, 18M
UQ.B.72 .

11 A. A B. 607
1 Q. B. 636 .

0 Q. B. 834 .
5 Dowl. A L. 688
16 Q. B. 370, 1086
10 Q. B. 747 .

7 A. A B. 951
9 Car. A P. »8» 471

8 Car. A P. 187
3 Car. A Kir. 388,
13Q.B.111 .
16 Q. B. 1013
18 Q. B. 404 .
13 A. A E. 130

9 Irish Bq. Rep. 648
13 Q. B. 681
8 Q. B. 768

16 Jorist, 907, Bail Court
14Q.B. 884 .
13 A. A E. 798, 798

1 Q. B. 388, 383, 3

17 Q. B. 661
6Q.B.49

371

. 14 Q. B. note (a)

13QftB. 181 .
1 E. A B. 121
17 Q. B. 40 .

. 18Q.B. 884 .

PAOS

, 776

. 834

. 73

. 386

• &33
40

. 833.

. 983
. 886
. 903
878,988
. 804
. 336
. 341
. 340
37

83, 748, 766
888, 877

86, 749, 766
. 488
. 88
. 633
. 38

. 469

. 818

888, 877

. 884

488

83,766
. 336
47,649

. 490

' V. Lydeard St Lawrenee

-e. MarUn

- «^ Mae End Old Town .

13 Q. B. 998, 1008
13 a B. 118 . *
17Q.B.871 . .

e. Morrison

e.NeTitt

«— «. Newman

— ^- a. CConnor, V.

«^ Cyerton

■~^- V. Ozfosd, Gnardians of Poor of

«.Feek

— — V. Poor Law Commissioners, AUstonefiald
bsorpoflatkm

11 A. * B. 818

9 Car. A P. 313, 316

10 Q. B. 308 .
14Q.B.349 .
1 B. A B. 160
8Q.B.463 .

1 B. A B. 668
6 Q. B. 18

4 Q. B. 83 ^

8 Justiee of Peaee, 710

9 A. A B. 688

11 A. A B. 668

. 849
668, 888, 877
682, 888

. 636

• 687

. 877

. 834

. 336

. 619

. 363
334, 883

. 498

. 467

. 878

467, 468

TABLE OF CASES CITED.

R6gina v. Poor Law Oomminioiioriy In ra Bright- 1

helmsione j

-InreStOilea]

8 Q. B. 326

V, Pott Shrigley

«.Read

— — V, RbyddUo . , . . .
^— ^ ». RobiiMon ,....,

V, St Andrew, Governor of . . ,

«. St Ebbei

— ^-~ e. St Maiylebone

— V. St Mary Sonthampton .

— ». St Panoras • « .
o. St Thomai, New Sanim

9. Salford .-

V. Soott

— V. Seend

V. Smith

^^— V. Sonthampton I>oek Oompan^

-i* V. Taoolneatone

— — V. Tithe CommiMionert ....

e. Tordofl ..,..,

— ^— V. Trafford ..,,..

— V, Treasury, Lords of . • • .

V. Tyrwhitt

V. Wigan

0. York, Newoaitle, and Berwick Railway ]

Company j

Rex V. Aire and Oalder Narigation .

^— V, Aylett # .

— — V. Badeook ••....

— V. Barham ..•...,

V, Barker

V. Bath, Corporation of ... .

V. Beedle

V. Beverley, Gommi^onen for Lighting .

». Bien

V, Bird

V. Birmingham, Reetor, Ao., of

V. and Staffordshire Gas Light ]

Company . . . «
— ^ V, Boame ....

V. BoyaU ....

9, Bradford

«. Bridgewater, Mayor, Ac, of

— — «. Brighton Gas Light Company
— — V. Chelsea Waterworks Company

«. Chester, Bishop of .

-^- e. Cottingham- ....

17 Q. B. 445, 4eS

» A. A E. 001

12 Q. B. 148
0 A. A E. 019
14Q.B.827 .
17 Q. B. 406 .
0 Q. B. 78 .
12Q.B.137 .
10 Q. B. 299 .
14Q.B. 815 .
12Q.B.298 .
12 Q. a 57 .
12 Q. B. 100 .
8 Q. B. 548 .

12 Q. B. 138

5 Q. B. 014
14 Q. B. 587
12 Q. B. 157
14 Q. B. 459

6 Q. B. 988

4 B. A B. 422
10Q.B.357 .
12 Q. B. 292 .
14 Q. B. 287 .

15Q.B. 880 .

8 B. A A. 139, 4 B. A Ad. 189j
1 T. R. 03 .
0 East, 359 .
8 B. A C. 99 .

0 A. A B. 888
14 Bast, 009 .
8 A. A B. 407, 470

0 A. ik E. 040

1 A. A E. 327
13 East, 807 .
7 A. A E« 254

0 A. A B. 084

7 A. A E. 58

— - 9, Dawbeny
— »- v.. De Berenger

2 Bnrr. 832 .
4U.AB, 817
0 A. A B. 889
5 B. A C. 400
5 B. A Ad. 150 . .
2 Stra. 797 . .

7 B. A C. 015
f 2 Stra. 1190, 1 Bott P.
[ Othed.

8 M. A S. 07

PAOB
.'457

478, i74, 488

802

40, 45. r49, 755
. 908
. 038
. 809
. . 457

• . 41
. 44, 758
. . 032

• 808, 032
. 032

. 748,755
. 491

• 54,755

• . 902
84,225
48,758

. 488
. 833
. 1012
. 905
• 307
. 150

850

141

. 557

. 505

. 158

. 57

. 523

• 301

. 150
558,800

. 083

. 023

. 150

L. 847, pL 858,

225

827
507
227
400
801
858
80
550

158

TABLE OP CASES CITED. xxi

PA6B

Bix «. ]>iekeiuoii 1 Wms. Saimd. ISV b, Cth ed. . . 897

— «. Dowlin . • 5 T. R. Sll . . . ' , « .488

V. Bdmonton lM.ARob.34 167

V. Ely, Biflbop of 8 T. R. 390, 888 35

*— •. GUmorgtm, Mayor of . . .3 Smith's Rep. 8 984

V. Great Clabton 8 B. A Aid. 410 840

fF. Grost 8«lkeld 6 M. A 6. 408 . . . . 756

«. Gregory 6 B. A Ad. 666 897

9. Hidl 1 B. A C. 133, 387 .... 168

«. Hanley 8 A. A B. 488, note (6) . . 180

«.HaseU 18 Baft» 130 669

V. mggini . ' 3 Bait, 4 ...... 888

«.Hogg IT. R. 731 335

«.Jamef ....... Cald. 468 881

e.Joiief 4 B. A Ad. 845 878

9. Leedf 4 B. A Aid. 498 840

«.LiT«rpool 7 B. A 0.81 887

«. Idrerpool Bxcbange, Proprietor! of . . 1 A. A B. 485 338

-— ff. Maaehetter and Salford Watenroriu Com- 1 1 n ^ n ma 517

pMy i

«.Manlden 8 B. A 0. 78 489

«. Mildenball Buk . . ^. . . 8 A. A E. 963 1009

V. Mile End Old Town . • . . 4 A. A B. 198 840

9. Milnrow, Cbapelwardena of . . 6 M. A S. 348, 353 . • . .838

«.MiteheU 10 Baft» 611 761

fr.Mo8ley 3 B. A 0.338 519

p. Peny 5 T. R. 458 889

«. Poor Law Oommisiioneri, In re PariBh I 5 a a n 1 458 480

ofStw Paaeiafl

In re PariBh)

~^*7;n »^'»^''"i6A.*lt»4 46.

chapel Union )

•.Price 8T.R.147 489

9.PyweU 1 Stark. K. P. 0. 403 .... 884

«. Ramsden 8 A. A E. 458 167

e.Riehaidaon 1 M. A Rob. 403 888

•. 9 Bait» 489 . ^ 983

cRidgway 5 B. A Aid. 637 8ft

V. Rirer Wearer Karigation . . . 7 B. A 0. 70, note («> . . . 887

V. St Nieholae, Gloaeester . . Cald. 383, S. 0. 1 T. R. 733 note (a) . 335

«. ^Leioeater . . . S A. A B. 79 489

9, St Paaeraa Chnreb, Trnsteet of . . 8 A. A B. 635 488

V. Salter's Load Sloiee CommiMionen . 4 T. R. 780 887

iL Seward 1 A. A E. 708 878

fi Shiewsbmy, Tnieteei for Paying . . 8 B. A Ad. 318 ,. • . . 517

1. Somerton 7 B. A 0. 468 585

V. Sweet .... «^0r . 9 Batt» 35 . 489

«. Thatcher 1 DowL A R. 438 168

fi Tomer '. 13 Eatt» 338 884

ff.Ueklleld 6 M. A S. 314 640

■. Upton on Serem 8 Oar. A P. 138 . • . . . 509

«.WiUoaghby 4 A. A B. 143 • • ' • . .67

•.Wrottetley 1 B. A Ad. 848 833

BiehtfdB 9. I>yke 8 Q. B. 358 833

«.Lewii 11O.B.1035 737

xzu

TABLE OP CASES CITBD.

Ridge 9. HaidoMUo . . .
Ridley v, Pljonoath Orinding aad Baking Com-
pany ........

Ripley e. M'dim

Roake v. Benn

Roberts's Gsm

.- e. Andrews

9, Hay ward

V, WUliams

Robinson v. Peaoe

Roe dem. Hamerton e. Mitton ....

— ^ Wilkinson v. Trsnmarr

Earl of Berkeley v. York, Arohbishop of

PAaa
8T. R.417 lU

. 2Exoh. 711 142

4Bzoh.845 186

4Bligh.N. S. 1 S64

8Atk.308, 313 ...... 417

S W. BL 730, S. C. 3 Wils. 124 . . 697

3 Car. ik P. 432 770

776
81

Room 9, Cottam
Rowe «. Osborne
Rncker o. Cammeyer
Russel V. Hammond
Rossell V. Ledsam
Ratter v Chapman

2 Cro. M. A R. 661, 8. C. 6 Tjr. 682
7Dowl. P.C.03 . • . .

2Wils.S66 404

Wille8,682 . . . * . • .400

6Baet,86, 106 408

1L.M.AP.720 949

1 Stark. N. P. C. 140
1 Esp. N. P. C. 106
1 Atk. 13, 16
14 M. A W. 674» 689
8 M. A W. 1 . .

113
113
410
808
616

Salkeld *. Johnston

Salmon o. Randall

9. Smith

Sanders e. Coward

Sanderson v. Westley

Sandiman e. Breach

Savage v. Aldren

Savile v. Jaekson

Sayles o. Blane •

Self V. Kennioot

Sewell e. Jones .

Sharp V. Warren

Shaw V. Rowley

Sheen v. Riekie

Simpson v. Lord Howden

Shrewsbury and BirminghamRailway Company v.

London and Noryi- Western Railway Company
Skingley e. Sorridge
Slado 9. Milner .
Slingsby's Case .
Smith V. Adkins

e. Lasoelles

Somerville o. Lord Somerrille
Southampton Dock Company v. Richards .
Soath Yorkshire, Ac, Railway Company, In re
Spalding e. More ......

Sparks «. Wood

Sparrow v. Oxford, Worcester and Wolverhamp- '

ton Railway Company

Spenof r v. Pany

r 2 Com. B. 740, 2 Ezeh. 256, 1 Hare, 196,

[ lHaUATwells,329,lifann.Aa.242 536

2 Mylne A C. 439, 449 .... 860

1 Wms. Sannd. 207 a, b, 6th ed.

15 M. A W. 48, 66

6 M. A W. 98, 100

7 B. A C. 96, .

2 Stark N. P. C. 232

13 Price, 716

14 jQ. B. 205 .
2 Show. 506 .
1 L. M. A P. 626

6 Price, 131

16 M. A W. 810

6 M. A W. 176
9 CI. A Pin. 61

3 Uacn. A Gord. 70

11 M. A W. 50*3 .

4 Madd. 144 .
3 Rep. 13 b .
8 M. A W. 362
2T.R.187 . .

6 Yes. 750

1 Man. A O. 448 .
14 Jurist, 1093 (Q. B. BaU Court)

2 Tidd's Prac. 814, 9th ed,
6 Mod. 146 .

16Q.B. 526 .
3 A. A B. 331

. 951

. 438

. 886

. 619

. 947

. 439

. 649

. 185

. 448

. 100$

. 288

. 585
662,789

. 661

. 808

. 739

. 990

. 594

. 77©

. 42

. 776

. 965
88

. 202

851
993

TABLE OF OASBS dTES.

XZUl

PAoa

0t Caiheriae, Maator, Gam of .... 8 Rep. 91 b * 139

SUekpolo «. BeMimont 3 Yea. 88 922

8tHid«i w. Standen S Yes. jnn. 689 354

Stepaton 9. StapUton 1 Atk. 2 417

Stannel «. Hogg 1 Wms. Saand. 228 . . .568

Stikoman v. Dsirion . • • . 1 De G. A Sm. 90 . ... 649

Stnlly V. Winson
Bteother v. HatehinBon
StartoD «. Eichardsoa
Satton's Hoipital, Gate of
8w««t V. Gator .
SydsodT v. The Qneen

lYern. 297 716

4 New Ga. 88 ....*. 541

13M. AW. 17 708

lOBep. la,23a . . , . .618

11 Sim. 572 289

11 Q. B. 245 688

Taylor v. Wilson
Toather, Bz parto
Tbompeon *. Ingham
Thorahill v. Hall
Thornton v. Charles •

V, Kempster

' •. Men

Thorp V, Gole

Thorpe V. Plowden

Tffley's Case •

Timms v. Williams

Timothy v. Fanner

nnniswood v. Pattison •

Topo «. Hookin .

Tonasaint «. Martinnaaft

Townshend, Lord, v. Windham

XDymbee v. Brown •

Triqnet v. Bath .

Tuibill's Case

Taekey v. Hawkins

Tomer e. Cameron's Goalbrook Steam

pany
Tomer, Beth, Case of

Goal

Com-

5BjEoh.251 . .

► . . . 788

1 L. M. A P. 7 .

. . . . 459

14 Q. B. 710 . .

, . . 188,201

2 GL A Fin. 22, 38

9 M. AW. 802 . •

. . . . 108

6 Taont 786 . . .

. 108

M.AM.43 . .

. . . 109

2 Gro. M. A R. 367, B. C

l.5T7r.l047 . 985

14 M. A W. 520 .

. . . 537

2 Leaoh. G. G. 662

. . 825

3Q.B.413 . .

. . . . 1009

7 Com. B. 814 .

. . . 441

3 Com. B. 243

> . . . 441

2 W. BL 1019

. . • . 411

2T.R. 100 . .

. . . . 991

2 Yes. Sen. 1, 10 .

. 409

3Bxoh.ll7 .

535

3 Borr. 1478, 1488

. • • . 191

1 Wms. Saond. 67

• . 184

4 Com. B. 656

. . . . 439

5Exoh.932 . •

. . • . 802

9 Q. B. 80 . .

. . • . 681

Tanghaa V. Brani

2 Ld. Raym. 1408

. 203

WaddfloTs V. Baroeti 2 New Ga. 638 297

Wadsworth v. The Qoeen of Spain • • . 17 Q. B. 171 201

Waiter Jones 1 New Ga. 656, 9 GL A F. 101 . 789

Waker «. Snowe Palm. 359 417

Walkei^ Dr., Case of Ga. K. B. temp. Hard. 212 . • .23

0. Eastern Counties Railway Company 6 Hare, 594 849

V. Holyday Gomyn's Rep. 272 716

WaOis o. Haniion 4 M. A W. 538 581

xziy TABLE OF GASES CUED.

Wallop V. Lord Portamoatli • • • • 1 Sag. Pow. Zf7, 7tli ed. • . .154

Walton V. Chandler 1 Com. B. 806 S85

Warborton o. Loroland • ; . . • 2 Dow. A Clark, 480 • . .788

' Ward V. Clarke U M. A W. 747 . . • . 6M

Waters'! Case . * 1 Den. G. C. 866 666

Weeton «. Woodeook 7 M. A W. 14 684

Welbj o. Brown ..•••• 1 Bzch. 770 868

West 9. Blakewaj 8 Man. A O. 729 186

Westoby «. Day 2 B. A B. 606 216

Wbeatley 9. Boyd 7 Bxeh. 20 696

Wheeler V. Home . .^ • . • . WiUes, 208 708

Whiteomb v. Whiting 2 Doug. 662 486

Whiston V. Dean and Chapter of Roohester . 7 Hare, 682, 661 28

Wigton, OTerseers of, V. Snaith, Overseers of . 16 Q. B. 406 . . '. • • 69,61

Wilbraham v. Snow 2 Wms. Sannd. 47 b • . • .942

Wildbor e. Rainforth 8 B. A C. 4 . • . ... .692

Williams w. Great Western Railway Company . 8 M. A W. 866 864

9.Millingtott 1H.BL8I 770

Wood V. Dixie . 7 Q. B. 892 . . ... • .404

V. Leadbitter ... . . * . 18 M. A W. 838 . ^ . • .681

V, London, Mayor and Commonalty of . . 1 Salk. 397, S. C. Hol^ 896 . . • 26

V. Wood 4Q.B. 397 81

Woodroffe «. Doe dem. Danlell . . . . 16 M. ik M. 709 406

Worsley «. Sonth Devon Railway Company . 16 Q. B. 689, 644 846

Worthington v. Qrimsditoh . . . . 7 Q. B. 479 486

Wright «.CatteU f S. C (not S. P.) 18 Bear. 81, 19 L. J.

^ \ (N. S.) Ch. 627 .... 441

Wynne e. Tyrwhitt 4 B. A Aid. 376 278

Year Book . . HiL 8 H. 6, foL 18, B., 19 B. nL 6

York and North Midland RaflwayOompanye.1 J 3^^ ^^j^. ^ ^

The Qneen ... . • • ) ' v /

■••>G..ASES

ABOUED INP 3>ETE£MINED

THE QU E E N'S BEN C H,

ni ' / .-

(Bu\tx (Knm,

XIY. VIGTOBIA. 1B61.

(EASTER TERM CONTINUED FROM VOL. XYI.)
The QUEEN v. The Dean and Chapter of ROCHESTER.

King Henij VIII. foanded by ohuier the Cathedral Cbnroh of Rooheeter, to ooniiit of a Deaa
and fix Prebendajiei, and he made eertain itatotei for their govemment. By Statute S6, a
meeter waa to be chosen by the Dean and Chapter, to teaoh eertain. poot boye who, by the
tame etatnte, were to be inetmcted in the Cathedral : and the mae ter, if found negligent or
vnllt, wae to be removed. By Statute 85, if any offioer, of a deioription inolnding the mae ter,
eommitted a slight offenee, he was to be eoireeted at the discretion of the Dean ; if a weighty
offenee, £e was to be expelled byjthose who gave' him his admission. By Statute 88, the
Bishop of Rochester for the time being was appointed Visitor, to see that the statutes and
ordinances were observed, and with ftiU power to eonrene and interrogate the Dean, oanons,
Biinor canons, clerks and other officers, on the articles contained in the statutes, and all other
things touching the welfare and honour of the Cathedral ehnroh, to punish ascertained offimeef
aoeording to their degree, and reform them, and to do all things which might seem neoessaiy
to the extirpating of vices and which pertained to the office of a visitor.

W., a sehoolmaster appointed under Statute 26, published a pamphlet) on Cathedral Trusts,
aoousiog the Dean and Chapter of having misappropriated the Cathedral revenues of Rochester
to their own benelit and the injuiy of poor persons entitled to share in them, and imputing to
the then Bishop, formerly Dean of Worcester, that he had been guilty of similar misconduct as
Dean, and had, as visitor, culpably, and with knowledge of the ikots, omitted to correct it in
the Dean and Chapter of Rochester. The Dean and Chapter removed W. Arom his office fox
this publication and the refleetions upon the Dean and Chapter and the Bishop, therein con-
tained, pronouncing him guilty of a grave olTence, and unfit to be continued in the office of
Kasler. They, however, under connsers advice, revoked the dismissal, but immediately
afterwards cited W. to answer befora them for the same offence : and they afterwards dis-
missed him again for the same publication.

A asandamus having issued to rastora W., the Dean and Ch^ter made a return, and W. pleaded
several pleas.^ The fkcU appeared on the record as above stated. The return alleged that W.
had been removed, to wit, for lawful cause, and had not appealed to the visitor. W. pleaded
that the Bishop had an interest in the cause of removal which disqualified him from acting as
visitor; and by another plea he justified the publioation, and denied that he was lawfully dis-
missed. On demurrer to the pleas. Held,

L That the Bishop (if not interelted) was the proper visitor In this ease, for that Statute 86 did
not withdraw it from the general authority given to the visitor by Statute 88, and the Dean and
Chapter did not exercise a visitatorial authority in dismissing the Master.

S. That the Bishop had not sooli an interest as disqualified him from acting as visitor.

VOL. xvn. — 4 0

1 REGINA V. DEAN, &c., OP ROCHESTER. E. T. 1851.

8. That the proteentor, therefinra, ihoald hare appealed to the victor, and not proceeded by
mandamus : And that, afBuming the diimissal to have ^>o^ improper, this Court waa not
authorized to interfere on the alleged ground that the^D^tl^^d Chapter were acting in exeeea
of their juriBdiotion. .•/-.*'

Mandamus, directed to The Dean' to'd Chapter of The Cathedral
^^, Church of Christ and thcf'fjBkssed Virgin Mary of Rochester.
^-^ The writ suggested that B^^6rt*Whiston, clerk, was duly qualified
for, and duly elected, n6iainat6d, appointed, licensed, allowed, sworn,
and admitted to and .ijHo ,{he place and o£5ce of Head Master of the
Grammar School of .bf^>nnexed to the said Cathedral Church, created,
founded, established^ and endowed under and by virtue of certain letters
patent of H^&rJ^ VIII., in which place and office he always behaved
and governed' Utnselfwell and according to the statutes and ordinances
made for ^^^anageimfent, ordering, direction, and government of the
* ^gead^^tel\fb|F AeJiipl^ being of such School : yet defendants, with-
out^^ny reasonable cause, and contrary to the said letters patent, sta-
tutes, and ordinances, have unjustly removed the said R. W. from the
said place and office, in contempt, &c., contrary to the statutes and
ordinances for governing the said Grammar School, and to the great
damage, &c., of the said R. W. The writ commanded the defendants
to restore or cause to be restored the said R. W. to the said place and
^nn office and the full exercise and enjoyment thereof, "^together with

-' all the liberties, privileges, &;c., thereunto belonging; or show
cause, &c.

Return. That, before and at the time of the making of the letters
patent after mentioned. King Henry VIII. was seised in his demesne
as of fee, in right of his crown of England, of divers lands in Rochester
in the county of Kent in the said letters patent more particularly men-
tioned, the same lands having theretofore been the site of a certain Con-
vent or Monastery of the Church of Saint Andrew the Apostle of Ro-
chester ; and, being so seised, the said late King afterwards, to wit on
18th June, 83 H. VIIL, by his letters patent under the Great Seal,
and then made to the tenor and effect following of and concerning the
said Convent or Monastery and of and concerning the said lands,
founded and established, amongst other things, a certain Cathedral
Church, viz. : The return then set forth the charter, by which Henry
VIII. founded the Cathedral Church, to consist of a Dean and six Pre-
bendaries, who were to be a body corporate, and to be called the Dean
and Chapter of the said Cathedral Church ; and the King by the same
charter ordained that the said Cathedral Church should for ever be the
Episcopal see of the Reverend Father, &c., Nicholas Heath and his suc-
cessors, bishops of Rochester. And His Majesty granted the site of
the old monastery, with divers chattels, buildings, lands, &c., formerly
belonging thereto, to the Dean and Chapter in puram et perpetuam elee-
mosynam* The Dean was to have the power of appointing the inferior

17 ADOLPHUS & ELLIS. N. 8. 8

officers of the Cathedral, and of correcting and expelling them : saving
to the King the right of nominating, on vacancy, the Dean, six p^ .
^Prebendaries, and six poor men to be supported bj the Boyal '-
bounty.

The return then stated that, after the making of the letters patent,
the King, in the 36th year of his reign, by indenture then made in pur-
suance of a provision in the said letters patent, made, specified, and
declared divers ordinances, rules, and statutes of and concerning the
premises in the said letters patent mentioned, to the tenor and effect
following, viz." &o. The return then set forth the statutes. Those
material to the present case were as follows.

4. Officio Decani.

Quoniam decanum vigilantem esse decet, veluti oculum in corpore
qui reliquis corporis membris baud negligenter prospiciat, statuimus et
volumus ut Decanus qui pro tempore fuerit cum omni solicitudine prs&-
sit, canonicos cseterosque ministros Ecclesiss omnes moneat, increpet,
»rguat, obsecret, opportune importune instet, tanquam excubias agens
in reliquum gregem su» cur» commissum : curet autem ut divina officia
cum decoro celebrenter, ut conciones praescriptis diebus habeantur, ut
pueri cum fructu ii^tituantur, ut eleemosynsa pauperibus distribuantur,
ut in universum concredita sibi munera singuli fideliter obeant. Prae-
terea Decani interesse debet ut cum prsssens fuerit honestam et compe-
tentem familiam alat, pauperibus panem frangat, qufi in re ipsius con-
scientiam oneramus ut bonestd et frugaliter in omnibus se exhibeat.
Decanum autem insigniter miserum castigabit Episcopus: canonicoa
vero insigniter miseros castigabit Decanus, qui etiam males et in officio

[*6

tardos per statuta corriget atque puniet. Pr»terea thesaurum

*jocalia, Ecdesiss supellectilem omnem chartas et

mnnimenta aliaque bona et res quascunque ad Ecclesiam pra-

dictam spectantes, absque ull& illorum diminutione aut damno (salvo

eorum rationabili usu), diligenter ao fideliter dispenset, dispo-

nat ac custodiat, atque ab aliis quorum intererit illud agere dispensari,
disponi ac custodiri faciat, ut ea omnia successori suo integra relinquat.
Denique statuimus et volumus ut in omnibus causis gravioribus, veluti
in feodi concessione, terrarum dimissione, et aliis id genus, Decani si
prsesens fuerit consensus obtineatur ; qui si fuerit absens, mode intra
regni nostri Angliae limites degat, consensus ejus requiratur.

Statute 25 directed that there should be eight choristers, for whose
instruction, tam morum modestift qu&m canendi peritifi, there should be
elected, by the Dean (or the Vice Dean in the Dean's absence) and
Chapter, a clerk, duly qualified and sworn, who, si negligens aut in
docendo desidiosus inveniatur, post trinam monitionem ab officio depo*
natur.

6 REGINA V. DEAN, *»., OP ROCHESTER. E. T. 1851.

26. De PuerU GrammatieU et earum Iftfarnuxtaribui*

Stataimas et ordinamns ut ad electionem et designationem

Decani, aut, eo absente, Vice Decani, et Capitoli, sint perpetnd in
Ecclesifi nostrfi Boffensi viginti paeri pauperes et amicornm ope desti-

tati, de bonis ecclesisB nostrse alendi Atque hos pueros Tolumos

impensis EcclesisB nostrsB ali, donec^mediocrem Latina& grammaticse

notitiam adepti faerint, cai rei dabitur quataor annomm spatinm ...i

Statuimus prsetereft ut, per Decannm, vel, eo absente, Vice Decanum,
*R1 ^^ Capitnlum, anas eligatar Latin^ et (}rsec% doctas, "^bonae famas
'^ et pi» yitae, docendi facultate imbatas, qui tam viginti illos Eccle-
sisd nostra pueros quam alios quoscunque Grammaticam discendi gratifi
ad Scholam nostram confluentes pietate ezcolat et bonis Uteris exornet.
Hie in SchoI& nostr& primas obtineat, et Archididasculus sive praeci-

puus informator esto (Direction, is then given for the election,

% also by the Dean and Chapter, of an under master.)— Hos verd informa-
tores puerorum volnmus ut regnlis et docendi ordini quern Decanus et
Gapitulum praescribendum duxerint diligenter ac fideliter obsecundent.
Qudd si desidiosi aut negligentes aut minus ad docendum apti inveni-
antur, post trinam monitionem ft Decano et Capitulo admoneantur, et
ab o£5cio deponantur. Omnia autem ad functionem suam spectantia se
fideliter pra&staturos Juramento promittent. «

85. De Corrigendis Exeemfyui.

Ut in Ecclesi& nostrfi morum integritas servetur, statuimus et volu-
mus ut si quis minorum canonicorum, clericorum, aut aliorum ministro-
rum, in levi culp& deliquerit, arbitrio Decani aut, eo absente, Vice
Decani corrigatur. Sin gravius fuerit delictum, (si justum judicabitur)
ab iisdem expellatur a quibus fuit admissus. Si quis autem canonicorum
in offensfi aliqu& aut crimine undo EcclesiaD nostras grave scandalum
oriri possit culpabilia inventus fuerit, is per Decanum aut, eo absente,
Vice Decanum, admoneatur. Qudd si tertid admonitus se non emenda-
verit, apud Episcopum visitatorem suum accusetur, et illius judicio cor*
rigatur. Pauperum verd, quoties' deliquerint, corr^ctionem Decani,
aut, eo absente. Vice Decani, judicio reservamus, qui si incorrigibiles
^.^ permanserint, per Decanum cum capituli ^Consensu a nostrft

^ Ecclesifi expellantur et omne in eft emolumentum perdant.

88. De Visitatione JEcelesice.

Nullum opus est aded pi% coeptum, adeo prosper^ productum, adeo
fidelitur consummatum, quod non facilisubruatur ac inourifi et negligentift
Bubvertatur; nulla tam sancta et firma statuta conduntur quin temporis
diuturnitate in oblivionem et contemptum veniant, si non adsit continua
vigilantia et pietatis zelus : Quod quidem ne in Ecclesift nostrft unquam
fiat aut evenire possit, nos, Episcopi Roffenm qui pro tempore fuerit fide
ac diligentia freti, eundem Ecclesi» nostras Cathedralia Boffensis Yisitato-

17 ADOLPHUS & ELLIS. N. S.

rem constitotmoB, yolentes ao mandantee at pro ChriBtianfi fide et
ardente pietatis zelo vigilet et gnaviter curet ut h»o statuta et ordini^
tiones ^cclesiss noatrie i, nobis edit» inviolabiliter observentur, posses-
aiones et bona tarn spiritnalia quam temporalia prospero statu floreant,
jura, libertates et privilegia conaerventur et defendantur. Atque, at
luec ita fiant, stataimos et volumas at Episcopos ipse, quoties a Decano
Tel a duobos canonicis rogatas fuerit, imd, licet non rogatus, semel
tamen qaovia triennio, ad Ecclesiam nostram in personfi propri&y nisi
grandis obstiterit necessitas, alioquin per cancellarium suum, accedat,
Decanam, canonicos, minores canonicos, clerices, cseterosqae omnes
Ecclesiae nostrsd ministros, in locam congraum convocet. Gui quidem
Epiacopo, presentis Statuti vigore, plenam concedimas.potestatem et
aactoritatem at saper singulis articulis in statutis nostris contentis, et
quibuscunque aliis articulis statum, commodum aut honorem Ecclesise
nostrse concernentibus, Decanum, canonicos, minores canonicos, c»ter-
oeque ministros et cogat et eorum ^quemlibet per jaramentum p^^
Ecclesise prsestitum veritatem dicere de omnibus delictis et crimini- ^
bus quibuscunque. Comperta autem et probata, juxta, delicti et criminis
xnensuram, puniat Episcopus, atque reformet, omniaque faciat quae ad
yitiorum resecationem necessaria yidebuntur, queeque ad Yisitatoris
officium de jure pertinere dinoscuntur. Quos quidem omnes, tarn
Decanum quam canonicos, et alios Ecclesiee nostra ministros, quoad
omnia prsemissa volumus et mandamus ipsi Episcopo parere et obedire.
Statuimus autem, in virtute juramenti Ecclesise nostree praestiti, ut
nemo contra Decanum aat canonicos aut aliquem ministrorum Ecclesiss
nostras quicquam dicat et enunciet nisi quod verum crediderit, aut de
qao publica vox vel fama circumlata fuerit. Yolumus praeterea ut
Decanus, communibus Ecclesiaa nostras sumptibus, Episcopo visitanti,
octoqne personis comitate, unam, aut ad summam duas refectiones intra
Ecclesiae nostras aedes preparet et apponat. (Provision is then made
for referring any dispute on the construction of the statutes to the
Archbishop of Canterbury : and the Visitor and all others are forbidden
to establish new or dispense with existing statutes.) Inhibemus etiam
Decano et Canonicis Ecclesisd nostras ne hujusmodi statuta recipiant,
Bub pcenfi perjurii et amotionis perpetuas ab Ecclesifi nostrft. Reser-
Tamus tam^n nobis et successoribuB nostris plenam potestatem et
aactoritatem statuta haac mutandi, alterandi, et, si videbitur, etiam nova
oondendi.

The return then made averments to show that the recited statutes
were among those statutes of Cathedral and Collegiate churches which
are confirmed by stat. 6 Ann. o. 21, s. 1. And it stated that, from the
time *of thjS making of the said statutes hitherto, the Bishop of ^^q
Bochester for the time being has been, under and by rirtue of the *-
said statateB and the said letters patent, the Visitor of and in respect
of the said Cathedral Church, as in the Bame statuteB mentioned : That

9 REGINA V. DEAN, 4c., OF ROCHESTER. E. T. 1851.

the said Robert Whiston was elected Head Master under and by yirtne
of the said statates and not otherwise : that the school was the same
school in the said statates mentioned : that the letters patent mentioned
in the writ are those mentioned in the return : And that, the said R,
W. having been before the issuing of the said writ removed from the
said Cathedral charch and from his said office or employment of Head
Master as aforesaid, to wit, for lawfal caase in that behalf, he the said
R. W. has not appealed to the Bishop of Rochester for the time being,
as it was lawfal for him to do if he had so thought fit : and that, before
and at the time of the said removal, and of issuing the said writ, the
Right Reverend George Murray, by Divine permission Lord Bishop of
Rochester, was, and thence hitherto has continued to be, and is, the
Bishop of Rochester.

Plea 1. As to so much of the return as relates to the removal of R.
Whiston for lawful cause : that the cause for which he was so removed
from the said Cathedral Church and from his said office or employment
of Head Master was not a lawful cause in that behalf in manner and
form, &c. Conclusion to the country.

Plea 2. As to so much of the said return as relates to the said R.
W. not having appealed to the Bishop of Rochester : the said R. W.
says and repeats all the averments in the next succeeding plea herein-
after contained, so far as the same relate to the cause of removal of
^^^^ the said R. W. in the next succeeding plea mentioned, *as if they
^ were herein repeated ; each and every of which averments, and
each and every of the facts, matters, and things averred by those aver-
ments, the said R. W. here avers to be true. And the said R. W. says
that the matters and things in the said pamphlet averred, meant, and
intended to be implied and understood, were and are true. And that
the said cause of removal in the next succeeding plea mentioned, (viB*)
the writing, printing, and publishing of the pamphlet therein mentioned,
by the said R. W., in manner and form as in the same plea mentioned,
is the said cause of removal in the said return alleged as the cause of
removal of the said R. W. from his said office of Head Master, as ia
the said return mentioned, and not any other or different cause what-
soever. And that there never was any cause for the said removal of
the said R. W. other than the said writing and causing to be printed
and published the said pamphlet by the said R. W. as in the same plea
mentioned. That the Bishop of Rochester mentioned in the said
pamphlet, and the Kshop of R. mentioned in the said plea, is one and
the same person, and was at the time of the said writing, printing, &G.,
and thence continually hitherto has been, and still is, the Bishop of
Rochester for the time being to whom it is alleged in the said return
that it was lawful for the said R. W. to have appealed ; and the same
Bishop of Rochester was formerly the Dean of Worcester in the said
pamphlet mentioned, as and when in the said pamphlet mentioned, and

17 ADOLPHUS & ELLIS. N. S. 10

is the person therein mentioned as having combined in his own person
the offices of Dean of Worcester and Bishop of Rochester : and that all
the matters and things contained in the said pamphlet which relate to
the alleged improper application of the funds of the said Cathedral
Charch of *Worce8ter were written and caused to be printed and ^^^ ^
published by the said R. W. as aforesaid of and concerning the '-
B«id Bishop of Rochester as such former Dean of Worcester as afore-
•aid. And that the words of the said pamphlet, next hereinafter men-
tioned and set forth, vis.

" SiaJl we must not oompassionate the boys at Canterbury too much, some ^itj is
wanted for the forty at Worcester, who are in a worse plight Instead of 21, 13«. 4d.
they get only 5s, lOd. each, for 21. 2a. 6d. is taken from each boy and given to the
aeoond master, and 5s. more is further alienated as taken from them and given to
the Head Master. The result of whieh is, that the Head Master has a less stipend
than the second, and that the forty boys at Worcester, instead of being maintained
at the ccfsts and charges of the Church, get 5s. lOd. each ; and yet the income of the
late Dean of Worcester was raised from 1002. to 14862. 11«. 9<2., and that of each
prebendary from 202. to 6262. Ss. Id., while the 22. Us. 4d. was cut down to 5s. lOd.
Sorely then the forty boys of Worcester may join the fifty at Canterbury, and, in the
language of the Chapters of England, 'urge the manifest injustice of taking from
one what is his, and giving it to another whose it is not ;' unless indeed they prefer
the heathen moralist, and quote their Cieero, and say of the transfers or * conveyances'
by which they suffer, 'Quid aliud est aliis sua eripere, aliis dare alienaT As for my-
self, I vrill not venture to express what plain dealing and plain speaking men will
think and say of such doings by dignitaries of the Church, one of whom, having
once combined in his own person the offices of Dean of Worcester and Bishop of
Bocheeter, has, in the latter capacity, been formally called upon, as he is by a solemn
obligation required, to enforce the observance of statutes identical with those which
he had, as Dean of a Cathedral, himself neglected to ' maintain,' even though ' a solemn
oath was administered to him on his admission, binding him to maintain these
statutes to the utmost of his power ;' neglect indeed which might well provoke the
Bishop of London to declare ^at he was ' unable to undeihrtand how certain parties,
who insisted so strongly on the steingent nature of his oath as Bishop, should as
J^eans and Prebendaries have found it so easy to loosen the obligation of their
own.'"

were written, and cauaed to be printed and pnbliahed by R. W., of and
concerning the said Bishop of R. for the time being, and of and con-
eeming the condact of the said Dean and Chapter of Worcester during
she time that the said Bishop of R. was snch Dean of Worcester as afore-
flttidy *in and with snch sense and meaning as follows, vis. &c. The ^^^ ^
plea then recited the same passage with innuendoes, applying seyeral '-
expressions above set forth (and among others the words << late Dean of
Worcester," and ^<one of whom," and << certain parties") to the Bishop
of Rochester. It then gave, with innuendoes, a further extract from
the pamphlet, in which, after other reflections on the Bishop, statute
88y De Yisitatione Ecolesise, was recited, and the writer proceeded:

''Clearly, then, Henry YIII. did not intend that the privilege and duty of visita- .
aion should be a name and delusion, but something real, praetioal, and substantial,
for all wrongs effeotoal and speedy redress in a ' Court at home,' and pro-

12 REGINA V. DEAN, &o., OF ROCHESTER E. T. 1851.

▼iding against all abnaes the oorreetioii if not the prevention of a fiiend, a proteotor
and a judge. But the Bishop of Rochester" (meaning the said Bishop of Rochester)
** has not been so ; he did not interfere in 1839, when," &o.

The passage went on to impate neglect of daty to the Bishop as Visi-
tor in several instances, and, among others, in the case of an appeal by
the defendant himself; adding :

"When a Visitor refuses to hear and determine an appeal duly made to him, com-
mon law points ont the remedy, a mandamus of the Court of Queen's Bench, to com-
pel him ; but no one would desire to extort a decision from an unwilling judge,"
(meaning the said Bishop of Rochester), " who has himself been a party to anything
Hke what the complainant appeals against" (meaning that the said Bishop of
Rochester had, as the fact was, been guilty, as such Dean of Worcester, of improper
conduct similar to that imputed in and by the said pamphlet to the said Bean and
Chapter of Rochester). "I do not wish to do so," Ac.

The plea then averred that defendant wrote and published the pamph-
let with the intent and for the purpose of thereby showing, as the fact
was and is, that the Deans and Chapters of various Cathedral churches
in this kingdom, including the Dean and Chapter of Rochester, and the
^- Q^ Dean and Chapter of Worcester during *the time the said Bishop
•' of Rochester was Dean of Worcester, have not, respectively, duly
or properly applied, expended, or disposed of the revenues of the said
Cathedral churches respectively, accorc^ng to the statutes or intentions
of the respective founders. That the facts alleged, set forth, or referred
to in the said pamphlet in support or explanation of such charges of
misappropriation or misapplication of revenues by the said Dean and
Chapter of Worcester are of the same nature and character as the facts
therein alleged, &c., in support or explanation of the like charges
against the said Dean and Chapter of Rochester. That the said Bishop
of Rochester was such Dean of Worcester as aforesaid within the space
of six years now last past. That defendant so wrote and published the
said pamphlet and the said words so hereinbefore set forth with the in-
tention of attributing to the Dean and Chapter of Worcester, during
the period (hat the said Bishop was such Dean of Worcester as afore-
said, the same identical neglect and improper conduct with respect to
the said Cathedral Church of Worcester, and in, ibout, and with respect
to the management, disposal, and application of the said funds and en-
dowments relating thereto, as are charged or imputed against or to the
said Dean and Chapter of Rochester with respect to the said Cathedral
Church of Rochester, and in, about, &c., the said management, &c., and
misapplication of the funds and endowments relating thereto ; and that
all the matters and things in the said pamphlet contained, condemna-
tory of the conduct of the said Dean and Chapter of Rochester in rela-
tion to the matters concerning them, as in the said pamphlet set forth,
were and were intended to be equally condemnatory of the conduct of
m-iATi ^^® ^^ Bishop as such *Dean of Worcester as aforesaid in rela>
-' tion to the matters concerning the said Dean and Cathedral Church

17 ADOLPHUS & ELLIS. N. S. 14

of Worcester as in the said pamphlet set forth : All which matters and
things, 80 written, &c., of and concerning the said Dean and Chapter of
Worcester, were true in substance and fact, and were so written, &c.,
with the intent and in the manner in the said next succeeding plea
mentioned; of all which the said Bishop of Rochester for the time
being, before and at the time of the said removal of the said R. W. in
the said return mentioned, and at the time of the making the said re-
turn, had notice : That divers passages in the said pamphlet contained
were written and published with the intention of imputing to the said
Bishop, as Visitor of the said Cathedral Church of Rochester, a know-
ledge of the misapplication of the funds and violation of the statutes of
the said Cathedral Church by the said Dean and Chapter of Rochester,
as well as a community of actions and proceedings with the said Dean
and Chapter in the matter of the said appeal of the said R. W. ; and
that the said Dean and Chapter have alleged and declared under the
common seal of the said Cathedral Church that they removed the said
R. W. from his said office in consequence of his having written and pub-
lished in the said pamphlet passages (untruly alleged to be) scandalous
and libellous, and directed as well against the Dean and canons of the
said Cathedral Church as against the Bishop of the diocese, and like-
wise against the Deans and canons of other Cathedral Churches.

That, by reason of the said several premises, the said Bishop of Ro-
chester for the time being had at the time of the said removal of R.
W., and from thence hitherto continually has had, and still has, such
an interest in the ^said cause of removal as to disqualify him from ^^^ .
acting as such Visitor as aforesaid : and that, by reason of the ^
premises, the said R. W. ought not, nor was he bound or required by*
the said letters patent, &c., and statutes, or otherwise by law, nor was
it necessary or proper for him according to the true intent and mean-
ing of the said letters patent, &c., or otherwise according to law, nor
eoald he nor ought he, to have appealed or to appeal to the said Bishop
in order to obtain redress in respect of the said removal or of the said
cause of the said removal or otherwise, in manner and form as in the
said return alleged. Verification.

Plea 3 stated the election and admission of R. Whiston by the Dean
and Chapter to the office of Head Master; that he accepted and
entered upon the same, and continued in it till his removal after men-
tioned; averments of R. W.*8 good conduct and ability, and desire to
continue in the office, and denial of his having been guilty of any grave
offence in morals or in manners, or otherwise, within the meaning of
the words <« gravius delictum" in the statute De eorrigendis exeesBtbtu^
or the meaning of any of the other said letters patent, statutes, &c. ;
or of any offence or supposed offence except as after mentioned. The
plea then made specific averments of certain alleged facts referred to
in the after-mentioned pamphlet, and imputed to the Dean and Chap-

YOL. XVII.— 6

15 REGINA V. DEAN, &c., OF ROCHESTER. E. T. 1851.

tor, in substance, that they had not made proper allowances to the
scholars and students, and had unduly increased their own emoluments.
It then stated that defendant had represented to them that the sta-
tutes, JLC, were not complied with in respect of the allowances to the
scholars and students, and requested them to augment the said allow-
^.^^ ances, hut that they had neglected and ^refused to do so: that

-^ he thereupon appealed to the Bishop of Rochester, requesting
him to cause such augmentation to be made (of which appeal he gave
notice to the Dean and Chapter); but that the Bishop «« wholly ne-
glected and refused to enter, inquire, or adjudge upon or into the mat-
ters referred to or contained in the said appeal, or other the premises :"
And that, afterwards, riz., on 26th May, 1849, he caused to be printed
and published a pamphlet of and concerning the premises, entitled
«« Cathedral trusts and their fulfilment,'* being the book referred to in
the two deeds poll after mentioned, and which book was in the words
and figures following. The plea then set out the whole pamphlet, and
added several averments, applying and verifying the statements con-
tained in it, and declaring that he at the time of publication believed
them to be true^ and still believes so ; that they were and are subjects
of public talk and rumour ; that he, at the said time, believed that he
might lawfully and without violation of the said statutes or breach of
his duty as Head Master publish th^ same, and hoped that his doing so
would produce correction of abuses : And it averred that the publishing
of the said pamphlet was for the public good; and that defendant
would have forborne to publish, or would have withdrawn or corrected,
any of the statements, if he- had been reasonably informed that they
were inaccurate ; of all which, &c. (notice to the Dean and Chapter).

That, afterwards, viz., on 28th June, 1849, the said Dean and Chap-
ter, at a meeting of the said Dean and Chapter in Chapter then assem-
bled, did, against the will of the said R. Whiston, and by reason of m
supposed ofience alleged by the said Dean and Chapter to have been
^^.-. committed by the said R. W. by reason of ^his having so written

■^ and caused to be published the said pamphlet, resolve and order
that the said R. W. be forthwith amoved, removed, deprived, and dis-
placed of and from the said office of Head Master, and of and from all
houses, lands, profits, &c., to the said office belonging, &c. And that,
after the making of the said order and resolution, viz., on the day and
year last aforesaid, the said Dean and Chapter, against the will of the"
said R. W., made a certain deed-poll of them the Dean and Chapter,
sealed with their seal, bearing date, &c., and delivered a copy of the
same to the said R. W. The deed was then set forth, commencing as
follows.

"To all to whom these presents shall come, the Dean and Chapter," &c., "send
greeting. Whereas Robert Whiston, Clerk, M. A., Master of the Grammar School
of tiie said Cathedral Church, has lately written, and caused to be printed and pub-

17 ADOLPHUS & ELLIS. N. S. 17

lished, a pamphlet entitled ' OUkedral TnuU and their Julfilmeni,* of which the
scope and tendency are to oast odium on the Dean and Chapter of the said Cathedral
Church and the Dean and canons thereof individually, and to hold them up collec-
tively and individually to the reproach and contempt of the subordinate members
of the Cathedral, the inhabitants of the City and Her Majesty's subjects in general,
and which pamphlet contains many scandalous and libellous passages directed
against the Dean and Chapter of the said Cathedral Church and the Dean and canons
thereof individually, and also against the Lord Bishop of the Diocese, the Visitor of
the said Cathedral church, and likewise against the members of divers other Cathedral
churches ; particularly at page 42, where the Dean and Chapter of the said Cathedral
church of Rochester are charged with a violation of ordinances all of which they
have solemnly sworn to observe, and with suppressing, to their own profit, offices and
payments meant for the benefit of the poorer members of their cathedral : And at
page 43 the following words: ' Not only do the Dean and Chapter of Rochester dis-
Tegard the statutes, and loosen the obligation of the oaths for which so much
reverence has been professed, but they also violate the law :' And at page 49, after
setting forth the words of the respective oaths of the Dean and canons, the writer
proceeds : * Such are the oaths taken by the Dean and canons of Rochester : and
I assert that, after taking them, and after pleading the statutes and ordinances
of their founder, and although bound to keep the latter, every individual member of
the Chapter by the strongest and most sacred ties, they notwithstanding continue to
swell their dividends by disregarding *their statutes and loosening the obliga- r^-io
tion of their oaths : this assertion, a very grave and serious one, I shall prove ■-
in detail hereafter :* and at page 92, in treating of the stipends of the foundation
Scholars, the writer observes: 'In one case only, that of Durham, has even an
approximation been made to the fulfilment of this duty ; in all the rest it has been
entirely disregarded, and, in the cases of Canterbury, Worcester, Ely, and Rochester
(till 1842), under aggravated circumstances of malversation:' And at page 93,
after stating that the cases of Ely and Rochester have been pre-eminently bad, and
quoting from a declaration said to have been signed by an existing Canon of Rochester
for his brethren, the writer proceeds in the following terms, speaking especially of
the Dean and Chapter of the said Cathedral church of Rochester : ' It is not, I think,
too much to say that such acts vrith such words are 'contra fidem, contra jusjuran-
dum, contra rempublicam/ And, at page 100, the writer proceeds and alleges : ' such
was the state of things in 1831 and 1834 ; and I feel that I am not using language
too harsh in affirming that the then apportionment of the Cathedral funds between
the Chapters and their schools displays (except at Westminster) a disregard of justice
and a preference of money to principle, which in ordinary cases of trust would be
visited with the severest reprobation if not with the penalty of restitution ; but the
trustees in this case are dignified and beneficed clergymen,' " Ac. (The deed recited
more of the same passage, and another from page 102, the language and imputations
in which were similar to those in the passages above set forth.) "And whereas the
laws of this realm provide a remedy for any wrong or grievance that may exist, and do
not permit any man openly to vilify the character of another, or to impute to him
wicked motives and intentions : And whereas the said R. W., Master,'' ^., *' by
writing and causing the above pamphlet to be printed and published, has been guilty
of a very grave offence, and, in the judgment of the Dean and Chapter, has proved
himself to be utterly unfit and unworthy to be any longer intrusted wiUi the instruction
and superintendence of the foundation boys of their Grammar School, and the said
]>eaii and Chapter in Chapter duly assembled have resolved that he is unfit and
unworthy to continue in the office of Master of the Grammar School of the said
Cathedral Church of Rochester, and that he hath by such his misconduct as aforesaid
forfeited all the rights," Ac., " of that office, and have resolved and ordered that he
be forthwith amoved, removed, deprived, and displaced of and from the office of
Master of the said Grammar School, and of and from all houses, lands, profits," Ac,

18 REGINA V. DEAN, 4c., OF ROCHESTER. E. T. 1861.

''to the said office in anywise incident, belonging, or appertaining: Now knowje
that we, the Dean," &c., " have, by and with our whole and motual assent, consent,
and agreement, deprived, amoved, removed, and displaced, and by these presents for
ourselves and our successors do deprive, amove," Sec., " the said R. W. of and from
the said office," &c., " and of and from all houses, lands, fees, stipends," &c., ** to
the said office and place incident, belonging," &o. *' In witness," &c.

^-Q, *The plea then averred that the Dean and Chapter did after-
-*, wards dispossess and amove R. W. for no other cause than that
alleged in the deed. That afterwards, viz. 11th August, 1849, they
gave him a written notice that, by the advice of counsel, they bad can-
celled the deed, and did not intend to proceed further under it, and
that they did, at the time then present, acknowledge and recognise R.
W. as the Head Master. And they further informed him that they in-
tended forthwith to serve him with a citation to answer the charge of
having, contrary to the statutes of the said Cathedral Church, and to
his duty as a minister thereof, written and published a pamphlet enti-
tled « Cathedral trusts and their fulfilment," containing false and scan-
dalous imputations on the Dean and canons of the said Cathedral
church collectively and individually, and of other Cathedral churches in
this Kingdom ; and that th^y would be ready to hear his defence at
such time and in such manner as in the instrument of citation should be
expressed.

The plea went on to allege that K. W. was reinstated in the said office,
and that, while he was such Head Master, viz. on 10th October, 1849,
the Dean and Chapter in Chapter assembled, without the leave, &c.,
and against the will, of R. W., and without any just, lawful, or proper
process or proceeding, issued, taken, or pursued by the Dean and Chap-
ter in that behalf, «did adjudge and determine: That the said R. W.,
then being such Head M^^ter of the said school as aforesaid, and as
such one of the ministers of the said Cathedral church, had been guilty
of a great offence by writing and causing to be published the said
pamphlet as aforesaid, and had thereby rendered himself liable and ame-
*201 °^^'® ^^ ^^® ""penalties, punishments, and deprivation which the
^ said Dean and Chapter of the said Cathedral church were by the
said statutes or any of them, and especially by the statute JDe c&rrigen"
dis exceh8ibu9j or by any other power or authority whatsoever, autho-
rized or empowered to inflict, and that he the said R. W. had thereby
proved himself to be unfit and unworthy to be intrusted with the in-«
struction and superintendence of the foundation boys of the said school,
and unworthy to be continued in the said office of Head Master of the
said school or in the receipt or enjoyment of the advantages, privi-
leges, and emoluments of the said office ; and the said Dean and Chap-
ter, so then in Chapter assembled, did then, without the leave and
license and against the will of the said R. W., and without any just,
lawful, or proper process or proceeding issued, taken, or pursued by

17 AD0LPHU8 & ELLIS. N. S. 20

the said Dean and Chapter in that behalf, further adjudge, order, and
determine that the said R. W. should in due course be amoved from and
deprived of the said office of Head Master of the said grammar school
of the said Cathedral church, and the advantages, privileges, and emo-
laments thereof." And the Dean and Chapter afterwards, viz. on 19th
October, 1849, made and executed, and delivered to R. W., a certain
other deed poll under their common seal, beariug the last-mentioned date,
and in the words and figures following, &c. The deed was then set
out.

It began, "To all," &c. (as before), and recited that R. W. had been
duly cited and summoned, by an instrument of citation under the com-
mon seal of the Dean and Chapter dated 13th August, 1849, to appear
before them in Chapter assembled, on 14th September, 1849, to an-
swer, in manner in the said instrument expressed, *the charge of ^^^^
having written and caused to be published a certain pamphlet en- '-
titled, &c., containing divers passages of a scandalous and libellous na-
ture, reflecting on the sa^d Dean and Chapter in general, and on the
iudividual members in particular, as in the said instrument was particu-
larly expressed. The deed then went on :

*' And whereas seyeral proceedings have, since the 14th day of September, 1849,
been had in the matter of the said citation ; and whereas, at a Chapter holden on
the 10th day of October, 1849, the said Dean and Chapter of the said Cathedral
church, having proceeded to the examination and investigation of the several state-
ments, and charges in the said instrument of citation contained, and having duly
and fally examined, investigated, and considered the same, and also the several edi-
tions of the said pamphlet in the s^id instrument of citation mentioned, and having
seen office copies of the several affidavits of the said R. W. sworn in the cause now
depending between the said R. W. as plaintiff and the said Dean and Chapter as
defendants in the .High Court of Chancery, did, by virtue and authority of the
statutes of the said Cathedral church, some or one of them, and especially the statute
entitled De eorriffendis exeeatibuStSXid by virtue of all other lawful power and authority
whatsoever enabling them the said Dean and Chapter of the said Cathedral church
lor the maintenance of good order and discipline therein and amongst the several
members and ministers of the same, adjudge and determine that the said R. W., then
being such Head master of the said school, and as such one of the ministers of the
said Cathedral church, had been guilty of a grave offence by writing and causing to
be published the said pamphlet, and had thereby rendered himself liable and
amenable to the penalties, punishments, and deprivations which the said Dean and
Chapter of the said Cathedral church were by the said statutes or any of them, and
especially by the said statute *De oorrigendia excessibus' or by any power or
authority whatsoever, authorized or empowered to inflict, and that he had thereby
proved himself to be unfit and unworthy to be intrusted with the instruction and
superintendence of the foundation boys of the said school, and unworthy to be con-
tinued in the office of Master of the said school or in the receipt or enjoyment of the
advantages, privileges, and emoluments of the said office: and the said Dean and
Chapter then in Chapter assembled did further adjudge, order, and determine that
the iaid R. W. should in due course be amoved from and* deprived of the office of
Head master of the Grammar school of the said Cathedral church, and the advantages,
pritileges, and emoluments thereof: Now know ye that we, the De^n and Chapter,"
tc,i "have, by our whole and mutual assent, consent, and agreement, deprived,

22 REGINA v. DEAN, &c., OF ROCHESTER. E. T. 1851.

^9^^ *^^^^^t remoYed, displaced, and expelled, and, bj these presents, for oar^
''-I selves and our successors, do deprive,'' &o., " and expel, the said R. W. of
and from the office and place of Upper or Head Master," £c., *' and of and from all
and every other office, place, or ministry in the said Cathedral church, and of and
from all houses, lands," &o. '* In witness," &c.

The plea then averred that the supposed oflfence in respect of which
the first-mentioned resolution and the secondly-mentioned deed poll
were made was the same with the offence mentioned in the first-men-
tioned deed poll and the secondly-mentioned resolution, viz. the said writ-
ing, printing, and publishing of the said pamphlet, and is the supposed
cause of removal alleged in the return of the Dean and Chapter, and
not other or different ; and that there never was any other cause for
such removal : that the removal mentioned in the return is the removal
set forth in the secondly-mentioned deed poll, and no other, &c. : and
that the Bishop of Rochester in the pamphlet and deeds poll mentioned
was formerly the Dean of Worcester as and when in the said pamphlet
mentioned, and was during all the time aforesayl, and still is, the Bishop
of Rochester for the time then and now being. Verification.

Demurrer to each plea, assigning causes, which it is not necessary to
set forth here. (See p. 24, note (i), post.) Joinder.

The demurrer was argued in this term,(a)

Sir F, Kelly ^ for the defendants. — First, the record shows that there
is a visitor ; an appeal lies to him ; and this court, therefore, has not
*.7q-i jurisdiction to inquire *into the propriety of the dismissal;
^ J Philips v. Bury, Skinn. 447,(6) Dr. Walker's Case, Ca. K. B.
Temp. Hard. 212. By the statutes, 26, De pueris Grammatieis^ &c.,
and 35, De Corrigendis JSxcesaibus^ tM body (that is the Dean and
Chapter) ^which elects the master has power to dismiss him : and the
functions of the visitor, if the Dean and Chapter do wrong, are pointed
out by the statute 38, De Vuitatione Hcclesice. The powers vested in
them and in the visitor, respectively, are the same as in the Chester
Case,(r) which is an authority for the defendants on this point, and
shows also that the return cannot be objected to if it does not state
precisely the cause of amotion. Should the Court think differently on
this last point, the defendants are prepared to show that suflBcient
ground of removal appears by the pamphlet as set forth : otherwise its
contents need not be discussed. It will be contended, however, that
the visitor is disqualified in this case, because the publication which
caused the dismissal reflects on him as well as on the Dean and Chap-
ter. The prosecutor thus avails himself of his own wrong. It is as if,
in a libel, he had reflected upon all the Judges of this Court, and there-

(a) April 26th, 1851; before Patteson, Wightman, and Erie, Js. (Lord Campbell, C. J^
was at the Criminal Court of Appeal.) And April 30th ; before Lord Campbell, C. J., Patteaon,
Wighinan, and Eric, Js.

(fr) Judgment of Lord Holt in S. C. 2 T. R. 346.

17 ADOLPHUS & ELLIS. N. S. 23

fore contended that the Court could not take cognisance of a proceeding
against him for the libel. [Patteson, J. — If a servant libelled me, and
his master dismissed him for it, and the servant brought an action for
the dismissal, could not I try the cause ?] If this objection be removed,
it results from the authorities that the proper jurisdiction is in the
visitor ; and that opinion was expressed in a former stage of this case(a)
bj Wigram, V. C, who said : " If *there be a visitor whose powers p^^^ .
are not so circumscribed as to exclude the jurisdiction, I appre- ^
bend it is clear, that the jurisdiction must be in that visitor, and that
his decision upon the point is final. This is so broadly stated in all the
cases since Philips v. Bury, Skinn. 447, that it cannot be necessary that
I should refer to authorities in support of it. The case of The King v.
Bishop of Chester, 1 W. Bl. 22, shows that the rule applies as well to
Cathedral as to other bodies."

Sir F. TkesigeTj contri. — It must be admitted that, if the Bishop is
visitor quoad hoc, the prosecutor cannot, after the decision in Regina
V. Dean and Chapter of Chester, 16 Q. B. 618 (E. C. L. R. vol. 69),
raise the question of lawful cause in this Court. But, if he be not the
visitor, then, there being an allegation in the return that the prosecu-
tor was dismissed for lawful cause, and the pleas denying such cause,
the question, whether or not sufficient cause appears, may, upon this
record, be open to di8CUSsion.(i)

The Bishop is not the visitor quoad hoc ; first, ^because, assuming, p^^.
for the purpose of the argument, that he is the visitor generally, ^
his authority is suspended in this case by reason of personal interest ;
the prosecutor having been removed for libel, not only on the Dean and
Chapter of Rochester and other deans and chapters, but on the Bishop
himself. It is suggested that the prosecutor cannot by his own wrong
disqualify the visitor : but it is contrary to the most established prin-
ciples, and to natural justice, that any person should be judge in his
own ^use. The rule would apply to the Judges of this Court, if they
were called upon to try a matter in which their jurisdiction was final,

(a) Wbuton «. The Dean k Chapter of Rochester, 7 Hare, 532, 561.

(5) The demurrer to plea 1 alleged, as to so much as related to the return of a removnl for
lawful cause, "that the same plea traverses and denies an averment which is not travemablc,
mad which is immaterial and stated after ' to wit' and not positively alleged or stated : that the
plea traverses and denies the lawful cause for the said removal, which allegntion of lawful
cause ought not to be and eannot be by law traversed or denied or put in issue in such pleadings
as the present : that it does not appear with certainty whether the said plea denies only the
existence of a lawful cause, or that the removal was founded on a supposed lawful cause, or
denies both," Ac. The demurrer to plea 2 stated, as to so much as related to the return of an
omiMion to cail in the visitor: that it does not appear with certainty how the Bishop was dis<
qualified or interested; that the plea sets up personal misconduct as a disqualification, and ects
it up so that no proper issue could be taken upon it; that the interest is so stated that, if issue
were Uken upon it, matter of law must be tried by a jury ; that the plea is uncertain, and
dooUe, ±e. The demurrer to plea 3 stated: That the plea confesses the matters in the return,
aad endeavors to avoid them by matter uncertainly and insufficiently pleaded and immRterinl :
that, if the plea denies the return or any part of it, it does so in an insufficient and improper
mr, and should have condaded to the country," Ao.

25 REGINA v. DEAN, Ac., OP ROCHESTER. E. T. 1861.

and each of them had a personal interest.(a) If it was necessary, in
order to justify the removal, that the libel on the Bishop should be one
ground of accusation, that is a cause of dismissal, as much as if it had
been the only cause. If the removal was really for the libel on the
Dean and Chapter, and that ground was sufficient, it is their own fault
that they did not confine the accusation to that. The principle relied
upon is laid down in many cases. Buller, J., says in Rex v. The Bishop
of Ely, 2 T. R. 290, 338 : «< Secondly, As this was not a visitatorial act,
it is impossible that the propriety of the Bishop's conduct can be
inquired into by him as a visitor, for this would be to determine upon
*9f)1 ^^^ ^^^ right. This point is so clear, that if there *were no

^ authority on the subject, I should not have hesitated to make the
first determination upon it. A visitor cannot be a judge in his own
cause, unless that power be expressly given him. A founder indeed
may make hitn so, but such an authority i^ not to be implied ; he cannot
visit himself. In the present instance the Bishop of Ely claimed an
interest, and asserted a right, in the appointment of the master ; and
that appointment is the act complained of. The case of The King v.
The Bishop of Chester, 2 Stra. 797, S. C. 1 Barn. K. B. 62, is a strong
authority on this point : it does not indeed go the whole length of this
case ; but the principle of it is, that the same person cannot be the
visitor and the visited." The incapacity of the Bishop of Chester to
visit, established by the last cited case, caused the passing of stat. 2
G. 2, c. 29. It is laid down in Brookes v. The Earl of Rivers, Hardr*
603, that, (( where a Judge has an interest, neither he nor his deputy
can determine a cause :" and the same doctrine appears in Wood t^.
The Mayor and Commonalty of London, 1 Salk. 397, S. C. Holt, 396 :
therefore the Bishop here could not visit by his Chancellor. It has
been said that even an act of parliament to make a man judge in his
own case would be void as against natural equity; Day v. Savadge, Hob.
86, 87. Among the more modern cases on this point are Regina v. The
Cheltenham Commissioners, 1 Q.^B. 467 (£. G. L. R. vol. 41), Regina
V. The Justices of Hertfordshire, 6 Q. B. 753 (E. C. L. R. vol. 51), The
Grand Junction Canal Company v. Dimes, 12 Beav. 63, 2 Macn. & G.
285, Dimes's Case, 14 Q. B. 554 (E. C. L. R. vol. 68),(a) and Regina
V. Aberdare Canal Company, 14 Q. B. 854 (E. C. L. R. vol. 68). The
^^-1 general rule on this point applies k fortiori in the ^case of a visitor,

•^ whose power is discretionary and under no control.
{T^ie Court adjourned the argument at this point, and, on the subse*
quent hearing, directed Sir F. Thesiger to confine himself to the ques*
tion as to the visitor's authority.)

(a) See Yenrb. Hil. 8 H. 6, fol. 18 B., 19 B. pi. t, eited in Dimes ▼. Proprietors of The Gruid
Junction Canal, 3 H. Lonis Co. 759, 787.

{b) And, a« to other stages of the same cave, see the notes 14 to Q. B. pp. 555, 567 ; and Dimes
V. Proprietors of the Orand Junction Cauali 3 H. Lords Ca. 759.

17 ADOLPHUS & ELLIS. N. 8. 27

Secondly ; by the statutes of this foundation the Bishop is not visitor
as to the Grammar School. A visitor may be so for one purpose and
not for another, if the statutes restrain him ; per Ashhurst, J., in Rex
V. The Bishop of Ely, 2 T. R. 835. «« There is no technical form of
words for granting a visitatorial power, but it may be by any words
showing that meaning ;*' <« and visitatorial power may be divided, one
set of visitors to one purpose, and another to another purpose ;" per
Lord Hardwicke in Attorney-General v. Middleton, 2 Yes. 327, 828.
The visitatorial power here is given, and obedience to it prescribed, in
large and general words, by statute 38, De Visitatione JEcclesice. But
statute 85, De Corrigendia JExceMibua^ contains this ordinance : <' Ut
in Ecclesi^ nostr& morum integritas servetur, statimus et volumus ut si
quis minorum canonicorum, clericorum, aut aliorum ministrorum, in levi
culp adeliquerit, a^bitrio Decani, aut, eo absente. Vice Decani, corn*
gatur. Sin gravius fuerit delictum, (si justum judicabitur) ab iisdem
expellatur a quibus fuit admissus :" that is, in the case of the Master,
the Dean and Chapter, by statute 26, De pueru grammaticis : whereas,
if one of the canons should commit an offence or crime subjecting the
Church to heavy scandal, he is to be admonished by the Dean, and, if
he do not amend, accused before the visitor, and by his judgment cor-
rected.

*A further question will be, if the power of expelling for << gra-

vius delictum" be in the Dean and Chapter, and they have expelled

[*28

for something which clearly is not gravius delictum, whether there be
not such an excess of jurisdiction that the Court-will award a manda-
mus, irrespectively of any visitatorial authority. Was it then «< gravius
delictum," within statute 35, to publish a pamphlet merely imputing a
breach of the founder's regulations in the application of the funds ?
[Patteson, J. — That was a question of fact, which they had jurisdic-
tion to determine.] They have here expelled a second time for the
same offence. [Lord Campbell, C. J. — Were the acts done in a visita-
torial character ?] They have assumed so to do them ; nor could they
do them in any other capacity ; but they have proceeded ultra vires.
[Lord Campbell, C* J. — The visitor has an original jurisdiction in
some instances ; most frequently it is vested elsewhere. It does not
follow from its being so vested that the visitor has not the appellate
jurisdiction.] The existence of an appellate jurisdiction is not to be
assumed, merely because there is a visitor.
Sir F. Kelly was not called upon to reply.

Lord Campbell, G. J. — Not having heard the whole argument, I
should wish the other members of the Court to give judgment in the
case.

Patteson, J. — The great question is. Who, in this case, is the visitor ?
On the argument the other day I thought it was almost conceded that
the general authority of the visitor extended to this case, unless the
VOL. XVII. — 6 D 2

28 REGINA v. DEAN, &c., OP ROCHESTER. E. T. 1851.

^^^. interest alleged in the seoond plea excluded him. But a further
^ ^question has been raised, on the 35th and 38th statutes, whether
the Bishop is visitor at all in a matter merely concerning the school.
Now statute 35 does not in any way relate to the appointment of a
visitor. It provides that if any one <« minorum canonicorum, clerico-
rum, aut aliorum ministrorum," should offend <Mn levi culpfi," he shall
be corrected, "corrigatur" <«arbitrio Decani, aut, eo absente, Vice
Decani." But, in case of a weightier delinquency, <<sin gravius fuerit
delictum," he shall be expelled by the same persons who gave him
admission ; that is, in the Master's case, the Dean and Chapter. Then
follows another provision, that, if a canon be admonished of an offence
for the third time and do not aipend, » apud Episcopum visitatorem
suum accusetur, et illius judicio corrigatur.'* Here, then, in the cases
first mentioned, of correction and expulsion, the Dean and Chapter,
and no others, are the persons to act ; in the last, the Bishop is the
judge in the first instance, and not by way of iippeal ; for here the
Dean and Chapter cannot act. But then statute 88 gives a general
power to the Bishop, to visit, and to correct all things, whether done
by the Dean and Chapter or by any other ; and the words extend, not
only to reforming and correcting in the first instance, but to hearing
an appeal. In Begina v. Dean and Chapter of Chester, 15 Q. B. 513
(E. C. L. R. vol. 69), where a chorister had been removed by the
defendants, this Court, on mandamus, held that the Bishop, as visitor,
was the proper person to inquire into the removal, though in that, as
in the present case, the Dean and Chapter had power by the statutes
to expel, as being the persons who admitted, and it might have been
*^m ®**^ *'^*^' ^^^ ^^^^ purpose, they acted as visitors. I think *that
^ case and the present are quite alike, and the statutes now before
us not distinguishable from those of Chester. The Bishop, therefore,
has the authority, as visitor, to decide whether or not the Dean and
Chapter have done right.

A question is then raised, whether this proceeding be not such an
excess of jurisdiction in the Dean and Chapter as calls for an inter-
ference by mandamus though there be a visitor. I think not. If there
be a visitatorial power, there cannot be such an excess of jurisdiction
in the body to be visited as ousts him of jurisdiction ; and it has been
so laid down in many cases.

If then the Bishop be, as I think he is, the visitor as regards the
school, the question remains, under the second plea, whether or not ho
IS excluded 6y reason of interest. By that plea the cause of removal
appears to be a pamphlet in which reflections are made upon the Dean
and Chapter, and also upon the Bishop, both as visitor of this founda-
tion and as Dean of Worcester: and therefore it is contended that he
has an interest which prevents his acting as visitor. That a man can-
not be judge in his own cause, is a rule laid down in Wood v. The

17 ADOLPHUS & ELLIS. N. S.^. SO

Major and Commonalty of London, 1 Salk. 897, Rex v. The Bishop
of Ely, 2 T. R. 290, Rex v. The Bishop of Chester, 2 Stra. 797, and
in other cases, which have been lately decided. The only question is,
whether that principle be applicable here; whether the plea shows
such an interest as would make the Bishop, if he acted, a judge in his
own cause. The Bishop, here, has no interest in the appointment.
In Rex V. The Bishop of Ely the case was otherwise ; but there, too,
the act which the Bishop had assumed to *do as visitor was not p^o^
properly visitatorial. Here no direct interest is shown in either *-
the removal or the restoration ; but it is argued that, because the stric-
tures in the pamphlet extend to him, he has not only a bias but an
interest. Assuming that the plea shows the reflections on him. to have
been a ground of removal, the removal was not his act, but that of the
Dean and Chapter : he has no interest in the funds said to have been
misapplied: nor would the application of them be any part of the
question before him as visitor. Nor would it be any question before
him whether or not Mr. Whiston was properly punished for reflecting
on him : and, if it were, his adjudication on the subject as visitor is no
remedy to him, and does not deprive him of his remedy by action. If
the Dean and Chapter have expelled the Master for a libel on the
Bishop, they cannot thereby oust him of his right to proceed at law;
In Brookes v. The Earl of Rivers, Hardr. 508, where a prohibition was
refused because the alleged interest of the Judge was not made out, it
was further objected that one of the parties was his relation by mdr-
riage ; but the Court said that *^ Favour shall not be presumed in a
judge." So, here, favour ought not to be presumed because the Bishop
is libelled in this pamphlet. The second plea, therefore, is no answer,
since it fails to show an interest in' the visitor ; and the visitatorial
power itself is not brought in question by it, the only question on the
plea being, whether or not the power is suspended.

WiGHTMAN, J. — As to the Dean and Chapter being '^visitors
quoad hoc, the argument entirely fails. Nothing here is done by
them as visitors ; nor are they authorized to do anything in that cha*
racter by statute 35.. Under that statute they may expel for certain
offences ; but in doing so they do not act as visitors : if they are wrong
in their exercise of jurisdiction, the only question is to whom an appeal
lies. The power, generally, in such cases, is with the visitor ; and, where
it is so, this Court has no jurisdiction. Now nothing can be more large
than the terms in which authority is given to the Bishop : <« Cui quidem"
««plenam concedimus potestatem et auctoritatem ut super Singulis arti-
culis in statutis nostris contentis, et quibuscunque aliis articulis statum,
commoduiQ, aut honorem Ecclesise nostro concernentibus, Decanum,
canonicos, minores canonicos, cseterosque ministros et cogat et eorum
quemlibet per juramentum Ecclesisa prsestitum veritatem dicere de omni-
bus delictis et criminibus quibuscunque. Comperta autem et probata.

[*32

82 REGINA t;. DEAN, Ac., OF ROCHESTER. E. T. 1851.

jnxta delicti et criminis tnensnram, puniat Episcoptis, atqtte reformet,
omniaque faciat quae ad vitioram resecationem necessaria yidebuntar,
quseqae ad visitatoris officium de jure pertinere dinoscuntur. Qaos qui-
dem omnes, tarn Decanum quam Canonicos, et alios Ecclesise nostrsd
ministros, quoad omnia premissa volumuB et mandamus ipsi Episcopo
parere et obedire/* If the Dean and Chapter commit a mistake in the
exercise of their functions, the person who has the general supervision
is the Bishop. The Dean and Chapter did not act as visitors in remov-
ing the master. That act is an ordinary incident in the administration
of such bodies, and is not visitatorial. The case is undistinguishable
^no-i from Regina v. Dean and Chapter of *Chester, 16 Q. B. 613 (E.
-' C. L. R. vol. 69) ; the objection now made might, if valid, have
prevailed there. As to the other points, my brother Fatteson has
expressed my opinion.

Erle, J.-*- As to the first question : it is clear that, under statute 36,
the Dean and Chapter have an original jurisdiction to remove an ofiBcer
of this kind for a grave offence. It is also clear that, under statute 38,
the visitor has power to say whether such removal has been wrong. He
is to do all that pertains to the office of visitor : he may himself expel
if the Dean and Chapter ought to have expelled but have not : and it
follows that he is the person to adjudicate as visitor when the Master
has been removed and alleges that the removal is wrongful. Secondly,
is the removal complained of such a clear excess of the jurisdiction that
the Dean and Chapter have no right to contend that it is within the
visitor's cognisance ? The ground of dismissal is aa alleged libel. A
publication may be so libellous as to be a grave offence. Whether it is
so or not, is for the determination of the Dean apd Chapter. If they
have jurisdiction at all, they have authority to decide this. The com-
plainant alleges that it was their duty to decide in his favour : if so, it
was their duty to entertain the question : how they should decide, it
was for them to consider. I agree with my brother Fatteson that the
visitor here has n« personal interest which disqualifies him.

Lord Campbell, C. J. — Having been absent during part of the argu-
^Q.^ ment, I did not wish to give my opinion '^till my learned brothers
-* had decided the case : but I think I may now say that I entirely
concur with them. It was argued that, by virtue of statute 86, the
Dean and Chapter were visitors in this case ; but I think not. All they
do under that statute is matter of appeal under statute 38. They have
an original jurisdiction as to amotion, but subject to appeal. In this
case, therefm, the proper appeal was to the visitor, unless he was dis-
qualfied by interest. The rule is, no doubt, that a man shall not be
judge in his own cause. But here the Bishop is no party, and has no
interest in the result. Those who contend for the disqualification might
as well say that, if the master had been removed for a libel on the
Judges of the Queen's Bench, we should for that reason have had no
jurisdiction. Judgment for the Crown.

17 ADOLPHUS & ELLIS. N. S. 34

The QUEEN v. POCOCK and Others. May 7.

TraslMS appointed, under • local aet, for the parpoie of repairing th0 roads in a distriot, with
power to contract for executing each repair^ are not cliargeable with manslaaghter if a person,
using one of such roads, is accidentally killed in consequence of the road being out of repair
through neglect of the tmstaei to contract for repairing it

Watson, in this term, obtained a rule to show cause why an inquisi-
tion, held on 6th January, 1861, before the Coroner for the City of
London and borough of Southwark, on the body of William Brent,
and brought into this Court by certiorari, should not be quashed for
insufficiency.

The inquisition set out that the defendants and others of the said
borough, on 27th December, 1850, in the parish of St. George the
Martyr, in the said borough, ♦'<upon the said William Brent" p^^.
<( feloniously did make an assault ; and that the said*' defendants *-
and the said others ^^were then and there trustees under a certain
Act," &c. (10 G. 4, c. cxxviii.(a)): "that it thereupon became the
duty of" defendants and the said other's " to contract and agree for
the reparation, repairing, and amending of a certain road hereinafter
mentioned, and also to repair and amend and to cause to be repaired
and amended the said road, to wit, a certain road commencing," &c.,
along, &c., to, &c., the said road being within a certain district called
in the said Act the south district of the ^parish of St. George the p^<^
Martyr in the borough of Southwark, " when and so often as the ^
same shall be necessary, with good, proper, and sufficient materials and
things, and with such due reparation and amendment that the liege
subjects of our Lady the Queen might go, return, pass, repass, ride,
and labour with their horses, coaches, carts, and other carriages in,
through, and along the said road (the same then and there being a
public road) as they ought and were wont and accustomed to do:"
that defendants and the said others, being unmindful of their duty,

(a) Local and perwmal, pablle : " For watching, lighting, elaaniiog, and improTing the roadi,
streets, and other public pasaages and places leading from the Stones End, Blackman Street, to
the Fishmongers' Almshoasee, Newington, and from thence, and from Stones End aforesaid,
towards Blackfriars, Waterloo, atfd Westminster Bri^gea, and the parts adjacent or near thereto,
within the parish of Saint Oeorge the Martyr in Southwark in the oountj of Surrey."

Bj sect 1 the defendants and others are appointed trustees fbr (among other things) repairing
the roads mentioned in the Act, and preronting nuisances therein.

Sect lO^naets " that it shall be lawful for the said trnateea to oanae the aatd se?eral roadi,
■treets, and other publio passages and places within the said district (or such part or parte thereof
only as to them the said trustees shall seem right) to be lighted and watched, and the part and
parts of the now turnpike roads within the distriot, when the same shall come under their
management and control and shall oease to be turnpike roads, in such manner as they the said
tmatees shall think fit, and to exercise all such powers and authorities as shall be necessary for
thai purpose ;" and ** io eontraet and agne for the reparation, repairing, and amending, by paring
or otherwise, of all parts of the aaid distriot which are now not deemed turnpike roads, and of the
■aid part or parts of the said turnpike roads, whenerer the same shall be under their manage-
ment and control, and hare by law to be rep^red and amended by the trustees under this Act :"
•ad by sneh eontraeta to stipulate for fines to be Imposed on the eontneton for neglect or
delaulL Power is also given to the trustees, by sect 49 and other sections, to lery and enforce
fajmtni of rates for repairing and maintaining the said roads, streets, Ao.

86 REGINA v. POCOCK. E. T. 1851.

« did then and there, contrary to their said duty, feloniously neglect
and omit to contract and agree for the reparation, repairing, and
amending the said road, and did also then and there feloniously neglect
and omit to repair and amend and to cause to be repaired and amended
the said road, to wit, at,*' &c. ; <« whereby the said road then and there
became and then and there was in a very ruinous," &c., « and decayed
condition for want of such due reparation and amendment of the same :
and that, the said William Brent being then and there riding upon a
certain barrow drawn by a certain pony which he the said W. B. was
then and there driving along the said road, the said" defendants and
the said others, «« by the feloniously neglecting and omitting to con-
tract and agree for the reparation, repairing, and amending the said
road, and the feloniously neglecting and omitting to repair and amend
and to cause to be repaired and amended the said road, and by reason
of the want of such due reparation and amendment of the said road as
aforesaid, did thereby then and there feloniously cause one of the
wheels of the said barrow then and there to drop into a certain large
^07-1 hole in the said road, and the said William *Brent to be thereby

^ then and there jerked and thrown with great violence from and
off the said barrow down to and upon and against the ground there ;
and by means thereof the said" defendants, &c., did <« then and there
feloniously cause the said W. B. then and there to receive mortal frac-
tures of eight of the ribs of him the said W. B. ; of which said mortal
fractures, and the sickness," &c., <^ thereby occasioned, the said W. B.
did languish," &c., "and, on," Ac, "the said W. B. of the said mortal
fractures," ic, " did die : And so the jurors," &c., " do say that the
said" defendants, &c., " him the said William Brent, in manner afore-
said," &c., " felonioilsly did kill and slay, against the peace," &c.

Ohamock now showed cause. — The defendants have been guilty of a
felony in omitting to fulfil their statutory liability to contract and agree
for the repairs of the road, inasmuch as the absence of such repairs has
caused the death of a party using the road. [Lord Campbell, G. J.—
Surely this is different from a case of personal neglect ; how can such
an omission as this, on the part of trustees, amount to a felony ?] They
have funds in their hands, for the purpose of repairing, which they
omit to use ; that is a neglect of their duty towards the public in respect
of those funds ; and such neglect is clearly a felonious offence, if ic
cause the death of any one ; Regina v. Haines, 2 Gar. k Eir. 368, 871
(E. G. L. R. vol. 61). The objection raised in Regina v, Barrett, 2
Car. & Eir. 343, cannot be made in the present case ; for there is a
distinct allegation here that it was the duty of defendants to repair.
The defendants will contend that the parish officers are liable for the
^oj., neglect. [Lord Campbell, C. J. — Where the *inhabitants gene-

^ rally of a parish are bound to repair, can they be indicted for
felony upon a death caused by their not repairing ?] It is not necessary

17 ADOLPHUS & ELLIS. N. S.

to go so far ; here an express duty is imposed by statute upon a parti-
cular body. [Lord Campbell, C. J. — But that duty is the same which
lay originally upon the inhabitants.] The question is not whether there
are sufficient grounds for a conviction in case of an indictment being
preferred, or what would be the punishment in case of a conviction : but
whether the inquisition is, on the face of it, bad. [Lord Campbell, C.
J. — To ascertain that, we must see whether, and how, the duty alleged
in the inquisition arose. Erle, J. — In order to make the neglect of
duty an indictable offence, must it not, as in the cases cited of neglect
.in the management of mines, be immediately connected with the death ?
WiGHTMAN, J. — In the cases referred to, of neglect in managing mines,
the person killed was not aware of such neglect. Why did the deceased
here go along the road at all 7] There is nothing to show that he knew
of its being out of repair.

Walton and O-. ffaye$^ contrd., were not heard.

Lord Campbell, C. J. — I am clearly of opinion that the inquisition
is bad, and must be quashed. No doubt the neglect of a personal duty,
when death ensues as the consequence of such neglect, renders the party
guilty of it liable to an indictment for manslaughter : and the cases
which have been cited in the course of the argument, and which establish
that doctrine, are good law. I myself tried a prisoner for not taking
proper care in managing the shaft of a mine. He intrusted the manage*
ment of it to an incompetent ^person, who said at the time that p^^q
he was incompetent. The prisoner was convicted ; and I did not ^
hesitate to inflict a severe sentence. Sut how can the principle I have
stated apply to the present case ? It cannot be said that the trustees
are guilty of felony in neglecting to contract. Not only must the
neglect, to make the party guilty of it liable to the charge of felony, be
personal, but the death must be the immediate r^esult of that personal
neglect. According to the argument here, it might be said that where
the inhabitants generally are bound to repair, and a death is caused as
in the present case, all the inhabitants are indictable for manslaughter.

Patteson, J. — The inquisition is clearly bad. The allegation that
the trustees feloniously neglected to repair cunnot be supported.

WiGHTMAN, J. — I am of the same opinion. The death here is not
the direct consequence of the neglect charged.

Erle, J. — In all the cases in which a party has been indicted for
manslaughter in causing death' by his omission to perform a particular
duty, I think the neglect of duty was immediately connected with the
death, as in the case of careless driving on a railway, or of not supply-
ing an infant with food. The present case does not fall within this
class. The inqifisition is bad, and must be quashed.

Inquisition quashed.

In an indictment for manslaughter which provides that any act of miscon-
nnder the act of Congress July 7, 1838, duct; negligence, or inattention on the

REGINA V. POCOCK. E. T. 1851.

part of persons employed in steamboat was lost without fault on the part of the

navigation, producing death as a result, defendants, they should be discharged :

shall be deemed manslaughter, it is and if it appear that those who lost

unnecessary to aver or prove malicious their lives did so by neglecting the

intent in the persons charged. If, on directions of the officers in charge, after

the trial of such an indictment, it ap- the accident had happened, the defend-

pear that the steamboat of which the ants should be discharged : United

defendants had charge, came into colli- States v, Warner, 4 M'Lean, 463.
sion with another vessel, whereby life

^.^, *The QUEEN v. The Inhabitants of LLANELLY, BRECK.

*40]

NOCKSHIRE. May 7.

A married pauper and her ebildren were removed by ao order of jastiees from the parish where
■he had resided, as a married woman, for ten years continuonsly. Two years before the order
of removal, her husband had left her and gone to America. She had received letters from him
since his departure, and was daily expecting, at the time of the hearing of the appeal, to
receive a letter from him containing money to enable her and her children to join him. The
Sessions having quashed the order, and stated the above facta in a case for this Court:

Held : that there was a disruption of the husband's residence, and that such disruption rendered
the wife and children removable, notwithstanding their unbroken personal residence in the
respondent parish.

On an appeal against an order of justices, dated 12th July, 1850,
for the removal of Margaret George and her three children from the
parish of Llanelly, in Brecknockshire, to the parish of Llanelly, in
Carmarthenshire, the Sessions quashed the order, subject to the opinion
of this Court upon a case, which was in effect as follows.

The pauper had been married ten years last May, and had resided
within the respondent parish ever since. She had three children born
since her marriage. About two years ago her husband left her in a
cottage in the respondent parish, and went to America, where he then
was. She had received letters from him, one only a week before the
Sessions, and was in daily expectation of receiving another letter from
him, with money for the purpose of defraying the expenses of herself
and her children over to her husband in America.

Thp respondents cited Regina v. Pott Shrigley, 12 Q. B. 143 (E. C.
L. R. vol. 64) ; and the appellants referred to Regina v. East Stone-
house, 12 Q. B. 72 (E. C. L. R. vol. 64).(a) The Justices were of opinion
there was no disruption of the five years' residence, and that the five
♦411 y®***^ ^^y^ ^'^'^ running on in the respondent *parish : and there-
^ fore the order was quashed without discussing the other grounds
of appeal.

Should this Court aflSrm the order of Sessions on the irremovability
by reason of residence, the order of removal was to be quashed on that

(a) Where, however, no dooiiion took plaoe on tiie point now raised.

17 ADOLPHUS & ELLIS. N. S. 41

ground : should the Court be of opinion that the order of Sessiona was
wrong, then the order of removal to be confirmed.

Pashleif, in support of the order of Sessions. — The order of removal
was properly quashed, inasmuch as the pauper and her children had
been irremovable under stat. 9 & 10 Vict. c. 66, s. 1, by reason of an
unbroken residence of five years in the appellant parish up to the re-
moval. It was contended by the respondent parish that, although there
had, primfi facie, been a residence by the wife of more than five years,
there was such a disruption of the husband's residence as to make the
wife removable. Regina v. Pott Shrigley will be relied on by the other
side. But there the disruption of the husband's residence, which was
caused by his being transported, took place before lie had resided five
years in the parish. In the present case the husband had resided more
than five years before the alleged disruption. He had not since then
changed his domicile ; so that, if he had returned before the order of
removal was made, he would have been legally irremovable ; and it is
upon the legal irremovability of the husband, and not upon the mere
fact of his absence from or presence in the parish, that the irremova-
bility of the wife depends; Regina v. St. Ebbes, 12 Q. B. 187'(E. G.
L. R. vol. 64). It is true that here the wife, at the time of the hear-
ing of the appeal, was in expectation of a letter *from her hus-

band containing the means for her departure from the parish;

[♦42

but that only shows, at most, that the husband had an intention of
changing his domicile at some future time. Nor is there any evidence
that there was such expectation on the part of the wife, or, conse-
quently, such intention on the part of the husband, at the time of the
making of the order, which is the date that must be looked to as mate-
rial. It cannot, therefore, be said that the husband has changed his
residence while the wife and children remain in the parish under these
circumstances. [Lord Campbell, C. J. — Must we not consider that
the husband's domicile is transferred, whatever may be the legal effect
of such transference ? Suppose that he were actually established in a
mercantile concern in America ; is his domicile still in England, until
his wife and children join him ?] That is a question of fact as to which
a jury might draw an inference either way. [Lord Campbell, C. J. —
There might be a question as to the operation of the change of domicile
under stat. 9 & 10 Vict. c. 66 ; but there could be no doubt of such
change having taken place ; the husband's personal property, if he died
in America, would be administered according to the law of that country.]
Somerville v. Lord Somerville, 5 Yes. 750, is an authority against the
personal property, under circumstances like the present, being adminis-
tered according to the lex loci rei sitss. The lex domicilii is to be
looked to ; and, according to Pothier, Coutumea d'Orleans, Introduc-
tion, c. 1, s. 20, p. 7 (CBuvres, vol. 5, ed. 1780, 4to.), the wife's resi-
dence is a material point in ascertaining the disputed, domicile of tho
VOL. XVII.— 7 E

42 REGINA t;. LLANELLY. K T. 1851.

^ .o-| httsband. Moreover, the Sessions having decided, *upon the evi-
^ dence laid before them, that there was no disruption, this Court
will not review their decision. It might be a question here, whether
there was any evidence at all for such a decision, but not whether the
decision upon the evidence was correct. Even the question whether, in
the case of a pauper's departure from the parish in which he has been
residing, there is an animus revertendi or not, is properly a question of
fact for the Qnarter Sessions ; Regina v. Tacolnestone, 12 Q. B. 157
(E. C. L. R. vol. 64). Here it does not appear with what object the
husband went to America ; and the Sessions have not raised any ques-
tion of law by their decision.

Further: even if the husband had changed his domicile, and had
abandoned his wife, she would not have lost her irremovability, as she
acquired it before the husband's change of domicile. In Regina v. Pott
Shrigley, 12 Q. B. 148 (E. C. L. R. tol. 64), the husband had never ac-
quired irremovability at all, so as to render the wife irremovable.
[Lord Oampbbll, G. J. — Can the wife acquire irremovability proprio
jure ?] The language of stat. 9 & 10 Vict. c. 66, s. 1, is certainly in-
tended to give the wife that power : «< such person*' applies equally to
the husband and the wife, [^rlb, J. — The proviso at the end of the
section makes the removability of the wife and children dependent
upon that of the husband ; and stat. 11 k 12 Vict. c. Ill, s. 1, so inter-
prets it.] The exact meaning of the proviso is not very clear ; and the
interpretation given to it by stat. 11 k 12 Vict. c. Ill, s. 1, has not
made it less perplexing. The latter statute seems intended to provide
that the absence of the '^husband, which creates a physical irre-
movability from the parish, does not creale such an irremova-
bility as to render the wife irremovable. The question had been
raised in Regina v. St. Ebbes, 12 Q. B. 187 (E. C. L. R. vol. 64).
{Pattbson, J. — Suppose the man in the present case had been unmar-
ried, and had gone for a time to America. If he had returned before
the day of the making the order, he would be removable : you could not
incorporate the time during which he resided in the parish, before
going to America, with the time during which he resided in the parish
after his return. Can you contend that in such a case he would be
irremovable ?] He would certainly be irremovable in the absence of
any explanation of the cause of his absence. [Lord Campbell, C. J. —
What question of law do you say that the Sessions have reserved ?]
None ; unless it be the question. Whether there was any evidence at all
for the fact which they decided. [Pattbson, J. — They seem to find
that there was no disruption, b^eaute the wife still remained in the
parish.] The fair inference of fact, upon the evidence, is, that the
husband was in doubt as to his return. But, at all events, the question
is one of fact only, and cannot be again raised here. In Regina v. St.

*44]

17 ABOLPHUS & ELLIS. N. 8. 44

Uarylebone, 16 Q. B. 299 (E. G. L. R. vol. 71), this Court refused to
draw an inference as to intention.

WiUe9j oontri^ was stopped by the Court.

Lord GahpbsIiL, C. J. — The argument has failed to satisfy me that
I was wrong in the opinion which I entertained at first, that, where the
husband is absent, *so as to cause a primfi facie disruption of the -^ . .
residence, the onus is upon those who dispute that fact to show an '-
animus revertendi. Here no evidence has been given of such inten-
tion ; and what little evidence there is weighs the other way. It ap-
pears that the husband has established himself in America, and that his
wife expects a letter from him containing the means for her removal to
his new abode. It seems clear, therefore, that he is not resident in the
respondent parbh ; and, if he is not resident himself, it is impossible
to contend that the wife has, by her own residence, acquired the right
of irremovability.

* Patteson, J. — The wife and children pre removable unless the hus-
band, at the time of the making of the order, is irremovable. It does not
at aU follow, as a matter of course, that the mere absence of the husband
creates a disruption. In Regina v. Tacolnestone, 12 Q. B. 157 (E. C.
L R. vol. 64), there was abundant evidence to show an animus rever-
tendi in the husband. But here it is for those who seek to prove the
husband's irremovability to show that he had an intention of returning
from America ; and the evidence, as far as it goes, is against such an
inference. The order of Sessions must therefore j>e quashed.

WiGHTMAN, J.— Regina v. Pott Shrigley, 12 Q. B. 143 (E. C. L. R.
vol. 64), ia a direct authority to show that the wife's residence does not
render her irremovable if the husband be removable. The question,
therefore, here is, whether there was any disruption of the husband's
residence? It has been '^contended that he must, primfi facie, p_^
be presumed to reside in the parish where he himself formerly *-
resided, and where his wife and children still reside. But, here, there
are additional circunlstances which throw the onus probandi, with
regard to the husband's residence, on the other side; for it would
appear from his letters that he had no intention of returning.

Eblb, J. — The^ evidence is clearly in favour of the conclusion that
there was a disruption of the husband's residence. If the unbroken
residence of the wife is to do away with the disruption of the residence
of the husband, the wife. might be irremovable even though the hus-
band had been abroad for ten years, and had never been within the
parisL That is clearly not the meaning of the Act. The order of
Sessions is bad, and must be quashed.

Order of Sessions quashed.

46 REOINA t;. MANCHESTER. E. T. 1851.

•

The following case was decided in Michaelmas term, 1851.

The QUEEN v. The Inhabitants of MANCHESTER. Nov. 13.

Panper Lad lived five yean in a parish, not that of her settlement, when she became chargeable
and an order was made for her removal. At the commencement of the flre years her hasband
resided with her in the parish ; but he left her, daring the five years, and went to live in
America without animus revertendL Daring the five years and before the order of removal,
he died:—

Held, that the pauper was not irremovable under stat 9 A 10 Vict a 66, s. 1, or 11 A 12 Viel
e. Ill, s. 1.

On appeal against an order of justices, dated 30th of May, 1850, for removing
Catherine Speakman, widow of Joseph Speakman, and her five children, from the
township of Barton upon Irwell to the township of Manchester, both in the coun^
of Lancaster, the Sessions confirmed the order, subject to the opinion of this Coart
upon the following case.

In April, 1838, the pauper Catherine was married at Manchester to Joseph Speak-
^471 '"^°' ^^^ x^e^er acquired any settlement in his own right, *but who had a
•^ derivative settlement in the appellant township. At the time of the marriage
the , husband was residing in the respondent township, the wife in the appelliuit
township. About four months after the marriage, the wife went to reside with her
husband in the respondent township ; and they resided together, occupying a house
in that township, without interruption, and without receiving relief, until the
beginning of April, 1848, when the husband gave up his house and sold the greater
portion of his furniture ; and on the 14th of the same month he lefl; England for
America, having arranged with his wife that, as soon as he got settled there, he would
send for her and the children. He never returned from America, but died there in
July, 1848. After the house had been given up, and before the husband left for
America, the whole family removed into lodgings which^he husband furnished with
that portion of his furniture which had not been sold, in which lodgings he, with his
wife and children, slept for several nights before, and on the night of, the 13th of
April, 1848. When he left England, four of the five children, mentioned in the order
were born ; the fifth was born soon after. Immediately after the husband lefl for
America, the wife applied for and obtained relief from the respondent township for
herself and her children ; which relief continued to be given down to the time of the
making of the order appealed against. The wife and children continued to reside
in the respondent township up tq the date of the order of removal. The Sessions
found that there existed no animus revertendi on the part of the husband Joseph
Speakman at the time he left the respondent township for America, and confirmed
the order. The question upon the above facts was, whether the pauper Catherine and
her children were, at the date of the said order, removable from the respondent
township or not. If this Court should determine that they were, the order of
Sessions was to be affirmed ; if that they were not, the order of Sessions to be reversed
and the order appealed against to be (quashed.

R, HaU, in support of the order of Sessions. — ^This case is in all material points
the same as Regina v, Llanelly (supra, p. 40), but is stronger, as the Sessions have
found that the husband had no animus revertendi. The fact of his defith cannot
better the position of the appellants. The Court then called upon

PashUy, contrlL. — By stat 11 Jb 12 Vict. c. Ill, s. 1, the wife is not removable
under stat. 9 Jb 10 Vict. c. 66, from any place from which the husband is irremovable
nnder that Act. Assuming, therefore, that the pauper Catherine would have been
removable, and the residence broken, if the husband had been alive, that is no longer
the case now that he is dead and that the term ** removable'' cannot apply to him.
i^Acn *A minor, ceasing to be one of his father's family, is emancipated from that
-I time if the separation continues till he attains the age of twenty-one ; but» if

17 ADOLPHUS & ELLIS. N. S. 48

he retaniB home before coming of age, his former statas reYives, and there is no
emancipation ; Rex o. Rotherfield Greys, 1 B. Jb C. 345. That state of things is
analogous to be present

Lord Campbell, G. J. — The husband being absent without animus revertendi, the
wife was removable the moment she became chargeable ; as the husband himself
would hare been if he had been alive and forthcoming. This being the situation of
the wife, his death could not restore her former status.

Pattison, CoLiRinoB, and Wightxan, Js., concurred.

Order of Sessions confirmed.

The QUEEN v. The Inhabitants of SHAVINGTON CUM GRESTY.

May 5.

Reli«f giren to or on Meount of the cbildren, ander lixteen. of any widow ia, bj atat 4 A 5 W. 4,
c 76, i^ 56, to be considered aa giren to anoh widow. But it ia nevertheleaa relief giren to the
ehildren alao ; and the time during which they ao reoeive relief must be ezolnded from a com-
pnution of the fire yeara of reaidenee neceaaary to make them irremorahle under atat 9 A 10
Vict e. 66.

On appeal against an order of jastices, dated 26th March, 1850, for
the removal of two pauper children from the township of Manchester
to.thejownahip of Shavington cam Oresty in the county of Chester,
the Sessions confirmed the order, subject to the opinion of this Court
upon a case, which was in substance as follows.

The case stated that the paupers resided in fact in the township of
Manchester for eight years next before the application for the order
appealed against. For the first five years of that period the mother
of the paupers was a widow, residing with them, and in the receipt of
relief from the appellant township for the support of herself and the
paupers, her legitimate children. Ever since the death of their mother,
which took place three years before the application *for the order ^^ . ^
in question, the paupers had received relief from the township of *-
Manchester. The paupers were respectively under the age of sixteen
years, and anemancipated whilst so residing with their mother. (The
case then stated the several points made at Sessions on behalf of the
appellants and of the respondents.)

If the Court of Queen's Bench should be of opinion that the pau-
pers Were removable at the date of the making of the said order, such
order was to be confirmed ; if the Court should be of a contrary opinion,
the order to be quashed.

PoMhleyy in support of the order of sessions. — The paupers are re-
movable, inasmuch as, by stat. 9 & 10 Vict. c. 66, s. 1, the time during
vhich they received relief from the appellant township must be excluded
in the computation of the time necessary to render them irremovable
by reason of a five years' residence. It is contended, on the other
side, that the paupers did not, properly speaking, receive relief at all,
their mother, with whom they were residing, being the person to whom,

49 REGINA v, SHAVINGTON CUM GRBSTY. E. T. 1851.

legally, the relief was administered, although the children shared in
the benefit of it. But, in the first place, the case itself expressly finds
that the relief in question was received by the mother << for the support
of herself and the paupers :" and, secondly, the argument on the other
side is founded. upon a misconception of the meaning of stat. 4 & 5 W.'
4, c. 76, 8. 56. The provision relied on, namely that << any relief given
to or on account of any child or children under the age of sixteen of
any widow shall be considered as given to such widow," was framed for
the. purpose of making the mother, as well as the children, chargeable
^.^^ in respect of '^'relief immediately given to the children only : not
^ of making the mother chargeable instead of the children.
Oouchy contr^. — The question turns on the construction of stat. 4 k

5 W. 4, c. 76, 8. 56 ; and it lies upon the respondents to prove that
the present case does not fall within the general enactment of stat. 9

6 10 Vict. c. 66, s.- 1, but within the proviso. Now the relief given to
the paupers must, for legal purposes, be considered relief given to the
widow alone. [Lord Campbell, C. J. — The construction adopted by
the respondents would treat the relief as given to both mother and
children, so that the mother would become removable by reason of such
relief, although she was not the party immediately relieved.] That is
what the respondents contend.^ [Erle, J. — Is not the head of the
family liable for the relief afforded to the other members of it ?] That
is by stat. 43 Eliz. c. 2, s. 7 ; and stat. 4 & 5 W. 4, c. 76, s. 56, con-
tains a proviso that such liability is not to be destroyed by any enact-
ment in the latter statute.

Lord Campbbll, C. J. — ^I am of opinion that the paupers were re-
movable, and that the order of sessions should be confirmed. The
intention of stat. 9 & 10 Vict. o. 66, s. 1, was to make any pauper
irremovable after aA unbroken residence of five years in any parish,
unless (among other exceptions) during any part of such time he should
have received parochial relief from any parish. Here it is found, by
the case, that the mother, for five out of the eight years during which
the paupers were in the parish, was in the receipt of relief *for the

*51]

support of herself and children. That is, in ^effect, a finding
that the children received relief during that time. The construc-
tion of stat. 4 & 5 W. 4, c. 76, s. 56, which is contended for by the
appellants cannot be supported. That section, it is true, enacts that
relief to the children shall be considered as relief to the parent ; but
that is not meant to prevent the relief being considered as given to
the children also ; the intention of the clause was to make the parent
removable in respect of such relief, as much as in respect of relief
actually and immediately given to the parent. I think, therefore, that
the paupers must be considered to have received parochial relief from
the appellant township within the meaning of stat. 9 & 10 Viot. c. 66,
8. 1, and that they were removable in consequence.

17 ADOLPHUS & ELLIS. N. S. 51

Pattbson, J. — Stat. 4 & 5 W. 4, c. 76, which is incorporated with
8tat. 9 & 10 Vict. c. 66, enacts, in sect. 66, that relief to the children
shall be considered as relief to the parent. But I do not see why that
enactment is to exclude the children from being considered as having
received relief. The case here expressly finds that the relief was for
the support of the children as well as of the mother : and I think,
therefore, that they were receiving relief within the meaning of stat.
9 4 10 Vict. c. 66, s. 1.

WiOHTMAN and Erlk, Js., concurred.

Order of Sessions confirmed*

♦The QUEEN v. The Inhabitants of CALDECOTE. May 7. [*52

PftQpera who bad reaided in parish 8. erer sinee 1835, were remoTed in 1845, under an order of
jaatioea, nnappealed againet, to parish 0. They were delirered to the orerseer of C. at bii
boose in C, remained there a few hours, and then returned to 8. the same day, and slept there
the same night; an agreement haring heen made between the offieers of the two parishes, that
the panpers should eontinne to reside at 8., and be relioTed at the cost of 0. They continued
to reside at S. under this arrangement up to the passing of stat 9 A 10 VioL o. 06 ; alter
which an order of justices was made for their remoral from 8. to C. : —

Held, on appeal against the order, that the panpers were not irremorable by reason of a flr*
yeais' unbroken residenoe in 8« • •

On appeal against an order of justices, dated 12th May, 1847, re-
moving Thomas Freer and his three children from the parish or town*
ship of Stoke Golding in Leicestershire to the parish or township of
Caldecote in Warwickshire, the Sessions confirmed the order, subject
to the opinion of this Court on a case, by which the following facts
appeared.

The place of the last legal settlement of the paupers was in the
parish of Caldecote, to which place they had bedn removed in the mid-
dle of May 1845, under an order of justices, duly executed and unap-
pealed against, bearing date 22d April, 1845.

The case set out the order, which was for removal from Stoke Gold-
ing to Caldecote, and which adjudicated the last settlement to be in
Caldecote.

The pauper Thomas Freer had resided in Stoke Golding from the
year 1885 or thereabouts, with the exception of the period of his and
his family's removal under the order of April, 1845, which took place
as follows. At the' time of the execution of the last-mentioned order,
the paupers were delivered to one of the overseers of Caldecote, at his
house, which was not in the parish of Caldecote, but near thereto ;
and there *they remained about one hour, and received from him p^.^
2t. 6d. for relief; after which they were delivered, at the request *■
of the said overseer, at the house of ihe other overseer of Caldecote,
in that parish. They remained at his house but a few minutes, and

53 REGINA v. CALDBCOTE. B. T. 1851.

had some refreshment from his wife, and then returned to the parish
of Stoke Golding on the same day, and slept in the parish of Stoke
Qolding the same night. They had been at lodgings for about three
or four months up to the removal, and had previously resided in a
dwelling-house there for upwards of tsrelve months. The return of the
paupers to Stoke Golding, as above stated, was in pursuance of an
agreement entered into on the day of, and after, the removal, between
the officers of that parish and of Caldeoote, that the paupers should
return to Stoke Golding, and be relieved there, and that the relief to
be afforded should be repaid by Caldecote : and this arrangement was
adhered to until the passing of stat. 9 & 10 Vict. c. 66 ; since which
time the officers of Caldecote have declined to repay any relief.

If the Court of Queen's Bench should be of opinion that the Sessions
were right in confirming the order of removal upon the facts above
stated, the order of Sessions was to stand confirmed ; if of the contrary
opinion, both orders to be quashed.

Q-, T. White^ in support of the order of Sessions. — The execution
of the order of removal, and the acquiescence of Caldecote at the time
of such execution, create a break in the residence ; Regina v. Halifax,
12 Q. B. Ill (E. C. L. R. vol. 64). It is true that, in the present case,
the parties removed '*'under the order did not sleep in the parish

*54]

to which they were removedt But this does not destroy the evi-

dence that the. officers of that parish acquiesced in the removal. Nor
was there any animus revertendi in the paupers, to keep up the con-
tinuity of residence : any disposition they might have to return was
subject to the will of the officers. Regina v, Seend, 12 Q. B. 133 (£•
C. L. R. vol. 64), is scarcely to be distinguished from the present case.
If the paupers here had returned to Stoke Golding without the agree-
ment on that point between the two parishes, they might have been
treated by Stoke Golding as vagrants. [Lord Campbell, C. J. — Must
there not be a pernoctation to create a cesser of residence ?] A cesser
of inhabitancy is all that is necessary to destroy the irremovability :
and the removal here was sufficient to create a cesser of inhabitancy at
all events. [Erle, J. — In stat. 13 k 14 C. 2, c. 12, inhabiting and
being settled seem to be treated as synonymous. Lord Campbell, C.
J. — Is there any case where an absence for a few hours only has been
held to have the effect of destroying the irremovability ?] An absence
nnder an order of removal, if only for two hours, would be sufficient.
[Erle, J. — Suppose the holder of a tenement in a parish conveyed it
away, and immediately afterwards walked out and purchased another
in the same parish : I am inclined to think that there would be a com-
plete cesser of his residence in the parish during the time between the
conveyance and the purchase. I do not think the pernoctation is neces-
sary to create a cesser. Certainly it is not always sufficient to create

17 ADOLPHUS & ELLIS. N. S. 64

it : a mail coach guard may sleep out of his parish without ceasing to
reside there.]

*Macaulay and Q-. ffat/es, contrJt. — The doctrine that any con- p^.-
strained absence, if lawful, even for the fraction of a day, suffices ^
to break the residence, is much too broad. There is no reason why the
absence in the present case, which was for a few hours only, under an
order of removal, should break the residence, any more than an absence
under a writ of subpoena, or under a charge of felony, which was held,
in Begina i^. Holbeck, 16 Q. B. 404 (E. G. L. R. vol. 71), not to cause
a break. There, no doubt, the Court said there must be an animus
revertendi, in order to preserve the continuity of residence : but this
question does not arise here, as, in order to make an animus revertendi
necessary, there must first be an interruption of residence : here there
was no interruption at all. [Erle, J. — Here the absence, as the other
side contend, is under an order expressly changing the residence.
WiOHTMAN, J. — The very object of the order of removal was to prevent
irremovability. Erle, J. — The enactment of stat. IS & 14 C. 2, c. 12,
8. 1, was that a man might be removed within forty days after he had
come to settle : the non-removal within that time was supposed to show
acquiescence on the part of the parish, and so to establish a settlement :
after that, by subsequent enactments, notice became necessary: and
thus serving an office was made to ^ve a settlement as showing notice
and so famishing evidence of acquiescence. You say that, if the parish
took the pauper before a justice, in order to get rid of him, and the
justice assented' to his removal, the non-removal in fact was equivalent
to an acquiescence by the parish and to a continuance of residence.]
No diDubt, under the old law, the pauper could be displaced, and there
would be no acquiescence. But '*'stat. 9 & 10 Vict. c. 66, s. 1,
creates an irremovability, not by a settlement inferred from
acquiescence, but by a residence, in order that a man may not be dis-
placed from the place where he has exercised 'his industry for five years.
The principle therefore, to which allusion has been made, does not apply
to the question of irremovability under the recent Act. The pauper,
under the old law, would return from the parish of his settlement in
violation of the law of settlement : here the parish receiving him back
intended to renounce the right of removal. [Patteson, J. — The revo-
cation, assuming that the agreement between the parishes can be treated
as such, was after the removal.]- It is not an uncommon practice to go
through the form of removing a pauper by an order of justices, for the
purpose of ascertaining his settlement, and then to retransfer him to
his original parish by agreement. The question in this case really
turns upon the meaning of the word << resided" in stat. 9 & 10 Vict. c.
66, s. 1. In 1 Nolan's Poor Law, p. 465, the place of residence is
defined as that place to which a party « retires for the purpose of sleep-
mg as the place of his ordinary and sufficient rest." [Erle, J. — Does

VOL. XVII. — 8

[*56

56 REGINA v. OALDECOTB. B. T. 1861.

a residence of five years mean a residence of five times three hundred
and sixty-five nights ? In case of service the settlement shifts to the
last place where the pauper, during the service, sleeps so as to make
part of a complete forty days' residence in that place.] If an absence
for more than one night would not operate as a break, it cannot be con*
tended that an absence of one or two hours during one day would have
that effect. To take the illustration suggested : a forty days' residence
by sleeping would not be interrupted by a removal like that in the
present case. [Lord Campbell, G. J. — Suppose a question arose upon
^.-^ the "^right of a man to a parliamentary franchise, dependent upon

^ his residence in the borough : it could hardly be said that an
absence like that in the present case would be sufficient ground for
holding that he had not resided in tne borough. However, the meaning
of the word « residence" may be differently interpreted according to the
different objects of the particular enactment. Erle, J. — The word
(« inhabitants" has a peculiar and distinct meaning in the Statute of
Bridges ; (a) there a man " inhabits" if he has rateable property within
the county: but this is not the meaning of the word in all other
instances.] As to there being no power to return, in the present case,
without the consent of the respondent parish, Bex v. Barham, 8 B. &
C. 99 (E. G. L. R. vol. 15), shows that the mere absence of such power
does not necessarily break the residence : and there Lord Tenterden
notices and meets the argument suggested from the impossibility of
returning without a breach of the law. Bex v. Willou^hby, 4 A. & E.
143 (E. G. L. B. vol. 81), confirms Rex v. Barham. According to the
argument on the other side, if the pauper had passed one step into
Stoke Golding, and there the parishes had rescinded their agreement,
and the pauper had then of his own accord recommenced residing in
Stoke Golding, the residence would have been broken. The question
is not what constitutes a removal, but what breaks a residence.

Cur. adv. vuU,
Lord Gampbbll, G. J., on a subsequent day in this Term (May 10th),
delivered the judgment of the Gourt.
*'i81 ^® ^^^ ^^ opinion that the order of removal was *properly con*

^ firmed by the Gourt of Quarter Sessions. This case appears to us to
be governed by Begina v. Halifax, 12 Q. B. Ill (E. G. L. R. vol. 64),
and Regina v. Seend, 12 Q. B. 138, establishing the doctrine (which we
see no reason to doubt) that, in construing stat. 9 & 10 Vict. c. 66, an
executed removal of the pauper under a valid order of removal interrupts
the continuity of the residence in the removing parish. Here the
paupers returned to the removing parish the same day on which they
left it : but they had been removed from it under a valid order of ,
removal ; and they had been delivered to the overseers of the parish of
their settlement. Not till after this removal was the agreement entered

(a) StoL 22 H. 8, 0. 5. See 2 Iiut 70S.

17 ADOLPHUS A. ELLIS. N. S. 68

bto between the overaeera of the two parishes, respectirely, that the
paupers should retam to the parish from which they had been removed,
and, residing there, should be maintained by the parish of their settle-
ment. There was a period of time daring which they had ceased to
reside in the removing parish, and daring which they had no power to
retnrn to it. The duration of this period we consider immaterial. The
order of removal was valid, and was bonfi fide carried into execation.

We do not see how this decision is at all contrary to the policy or
the spirit of the Act ; for the continuity of residence cannot be thus
interrupted so as to prevent the irremovability from being acquired,
unless the pauper becomes chargeable ; and the Legislature only intended
that the irremovability should be acquired by a five years' residence
without bringing any charge upon the parish. A fictitious chargeability
by fraudulent relief is guarded against by penalties ; (a) and the appre-
hension of such a possibility cannot affect the decision of a case p^.g
where the removal took place before the passing of stat. 9 & 10 '-
Vict. c. 66, and could not have proceeded from any fraudulent motive.

The rule for quashing the order of sessions must therefore be dia-
charged. ' Order of Sessions confirmed.

(a) Stot 9 A 10 Vlot o. 66, a. 6.

The QUEEN v. The Inhabitants of PRIEST BUTTON. Majf 7.

Stel. 13 A 13 Vict o. 103, f . S, wbieh proTides that the ooita iDonrred in the ranovftl and malD^
ten»nee(a) of a lanatio panper removed to any asjlam, and who, if not a lunatic, would hare
been exempt from removal under stat 0 A 10 Vict e. 66, shall be borne by the common fhnd
•f the Union comprising the parish wherein such lunatic was resident at the time of such
removaJ, applies to a Union formed under Gilberf a Ae^ 22 O. 8, a. S3. (And see now atat
16 A 17 Vict 0. 07, a. 102.)

On appeal against an order of justices, dated 4th May, 1850, direct-
ing the treasurer of the guardians of the Lancaster Poor Law Union
to pay to the guardian and oyerseers of the township of Over Kellet
in the county of Lancaster, and to the treasurer of the Lancaster
County Lunatic Asylum, certain sums of money in respect of the
expenses incurred in the care and maintenance of James Bland, a lunatic
pauper, confined in the said asylum, under an order of justices, dated
10th October, 1848, the Sessions confirmed the first-mentioned order,
subject to the opinion of this Court upon a special case.

The case set forth the order of 4th May, 1860, which recited the
remoYal of the pauper from Over Kellet to the Lancaster Asylum under
the justices' order (with the necessary formalities), the complaint of the
guardians of Over Kellet, being in a Union called the Caton UnioUi

(a) See Oreiaeera of Wigton «. Orefaeera of Snaith, 16 Q. B. 496 (B. 0. L. IL toL 71).

M REGINA V. PRIEST HUTTON. B. T. 1851.

^^^^ formed vnder Btat. 22 O. 8, *c. 83, and an inquiry by two justices

»60]

into the settlement of the lunatic, and adjudication by them that

Priest Hutton, in the Lancaster Union, was the place of his last legal
settlement ; that the lunatic was chargeable to Over Kellet, and was
receiving relief therefrom ; and that moneys had been paid by Over
Kellet to the treasurer of the Lancaster Asylum for the lodging, &c., of
the lunatic ; and it ordered the treasurer of the Lancaster Union to
pay to the guardian and overseers of Over Kellet 202. 6«. 8(2., being
the reasonable charges of lodging, &c., paid within twelve calendar
months next before the date of the order, and a weekly sum of 7«. Id.
fixed by the committee of visiters, and appearing to the justices to be
reasonable, &c., or such other weekly sum as the committee of visitors
should thereafter reasonably charge, &c.

The case then stated that J. B., the lunatic mentioned in the order
of May 4th, and, at the time of such order, duly confined in the said
asylum under the provisions of the Acts relating to pauper lunatics,
was lawfully settled in the township of Priest Hutton in the county of
Lancaster, but had been continuously resident in the township of Over
Kellet for more thafl five years before the making of* the order, and
before becoming insane, and would, under stat. 9 & 10 Vict. c. 66, have
been irremovable from Qver Kellet as a pauper, had he continued sane.
Priest Hutton is a township within the Lancaster Poor Law Union
f<}rmed under the provisions of stat. 4 & 5 W. 4, c. 76 : and Over Kellet
is a township within the Gaton Union, which is formed under the pro-
visions of stat. 22 G. 8, c. 83. No order had been made on the Caton
Union or the township of Over Kellet, under sect. 61 of stat. 8 & 9
Vict. c. 126, for the payment of the charges of the lodging, maintenance,
^^^^ "^medicine, clothing, and care of the lunatic J. B. in the asylum
-^ to which he was removed. The several allegations in the said
order, showing.jurisdiction in the justices to make such order, are true.
It was contended by the appellant township that, by the joint operation
of stat. 9 & 10 Vict. c. 66, of stat. 11 & 12 Vict. c. 110, s. 3, and stat.
12 & 13 Vict. c. 103, s. 4, the appellant township was discharged from
any liability to the expenses of the removal of the lunatic pauper to
the asylum, or of his residence there ;(a) and that the jurisdiction of
the justices to make the order in question was thereby taken away. It
was further contended, by the appellant township, that they were also
discharged from such liability, and the jurisdiction of the justices to
make such order was taken away, by stat. 12 & 13 Vict. c. 103, s. 5,
although the respondent township is in a Gilbert Union. This Court
confirmed the order. The question for the opinion of this Court was
stated to be. Whether the jurisdiction of the justices to make the said
order is taken away by the operation of the said statutes, or any of

(a) As to this, Overseers of Wigton «. Overseers of Snailh, 16 Q. B. 496 (E. C. L. K. roL 71),
WM cited in the argament in support of the order of Sessions.

17 ADOLPHUS 4; ELLIS. N. 8. 61

them : the order to be set aside or confirmed according to the judgment
of the Coart on these points.

B, Rail, in sapport of the order of Sessions. — The main question
is, how far a Union formed under Gilbert's Aet is within the provisions
of stats. 11 k 12 Vict. c. 110, and 12 k 13 Vict. c. 103, respecting the
chargeability of the common funds of Unions with the maintenance of
lunatic paupers. The language of these statutes themselves shows that
they were intended to *apply only to Unions formed under stat. ^^^^
4 4 5 W. 4, c. 76. In stat. 11 & 12 Vict. c. 110, s. 1, the costs •-
of the relief and burial of wandering poor are made chargeable to the
« common fund of 8ueh Union;" the Unions referred to being, in a
previous part of the same section, described as Unions <« formed or to
be formed under the provisions of the said Act," namely, as the pre-
amble shows, stat. 4 & 5 W. 4j c. 76. In sect. 3, which relates to the
chargeability of paupers rendered irremovable by stat. 9 & 10 Vict,
c. 66, the words ^^sueh Union" are still used. Now stat. 12 & 13 Vict,
c. 103, which continues the provisions of stat. 11 & 12 Vict. c. 110,
relative to the liabilities of the common funds of Unions, further
enacts, in sect.- 5, certain provisions for payment of • the expenses
incurred in obtaining orders of justices for the removal to the asylum
of pauper lunatics who, if not lunatics, would have been irremovable
under stat. 9 & 10 Vict. c. 66, and consequently within the operation
of stat.. 11 k 12 Vict. c. 110, s. 3, just referred to. The provisions*
of stat. 12 & 13 Vict. c. 103, s. 5, therefore, must be considered as
supplementary to, and in pari materia with, those of the preceding
statute ; and then the same interpretation must be given to the word
« Union," in those provisions, as attaches to the word «such Union" in
stat. 11 k 12 Vict. c. 110; that is. Unions formed under stat. 4 & 6
W.»4, c. 76, only. In fact, sect. 5 of stat. 12 k 13 Vict. c. 103, ori-
ginated in the decision in Regina v. Leaden Roothing, 12 Q. B. 181
(£. C. L. R. vol. 64), which was a case turning on the construction of,
among other Acts, stat. 9 & 10 Vict. c. 66. Under stat. 22 G. 3, o.
83, the contributions of the different parishes to the Union '*'were p^p^
fixed, once for all ; but under stat. 4 iSc 5 W. 4, c. 76, they vary ^
from time to time, according to the ability of the parishes. This may
have induced the Legislature to confine the enactment which laid the
parochial expenses on the Union to Unions formed nnder stat. 4 & 5
W. 4, c. 76. {M. SaU then argued upon other points of the case, as
to which a report is unnecessary.)

Pashley, contri. — Sect. 109 of stat. 4 & 5 W. 4, c. 76, expressly
states that the word <« Union," as used in that Act, is to include Unions
formed under stat. 22 G. 3, c. 83. The argument, therefore, of the
appellants, founded on stat. 11 k 12 Vict. c. 110, and stat. 12 k 18
Vict. c. 103, being supplementary to, and in pari materia with, stat. 4
and 5 W. 4, c. 76, teUs against them. If, as is contended, there be a

REGINA V. PMEST BUTTON. E. T. 1861.

difference between the common fond of a Union under stat. 4 & 5 W.
4y c. 76, and the general fond of a Union under stat. 22 G. 8, c. 88, the
language of stat. 10 and 11 Vict, c 110, 8. 1, which is clearly supple-
mentary to, and in pari materifi with, stat. 9 & 10 Vict. c. 66, and
consequently with stat. 4 & 5 W. 4, c. 76, also, charges «< the common
or general fund" of the Union with the expenses of the maintenance
of paupers in the cases there specified ; which shows that the Legisla-
ture intended this provision, and the previous and subsequent enact-
ments of a similar nature, to apply to both kinds of funds. (He also
argued on the other points.)

Lord GAMPBEtL, C. J. — The real question is, Whether a Union
formed under Gilbert's Act, 22 G. 8, c. 88, falls within the provisions
of stat. 12 & 18 Vict. c. 103, s. 5. I think that it clearly does, if we
*B41 ^^^^ ^^ ^^^ *words of the latter Act their natural construction.

-^ I see nothing to warrant us in coming to a different conclusion.
Sect. 109, the interpretation clause, of stat. 4 & 5 W. 4, c. 76, which
must be taken to apply to all subsequent statutes in pari materift,
dedares expressly that the word <« Union" is to include a Union under
Gilbert's Act. Tito order of Sessions, therefore, is bad, and must be
quashed.

Pattbson, WiaHTHAN, and Erlb, Js., concurred.

Order of sessions qua8hed.(a)

(a) Sm the late Luiwtie Afii, 16 A 17 Viet e. 97, which doei not repeal ftat 13 A IS Vlot cl
lOS, bat makei a new proTiaion (aect 102) for the caaei contemplated In leet. 5.

The QUEEN v. JOHN DALE. May 7.

Declaration, In scire fadai on a reeognliance to keep the peace, stated thatlhe reoognlianee wa«
acknowledged " before Lee P. Townshend, Bflqaire, and J. H. Harper, Eeqaire," two jiistioet of
the peace :-<-Held, on demnrrert that the Christian names of the jostiees did not appear to be
insufficiently stated.

It is not a ground for demnrring to such a declaration, that the reoognisanee is not shown to be
in oomplianoe with the Crown Office Rules, HiL T. 1844.

Dbclaration in scire facias, on a recognisance to keep the peace,
against defendant as one of the sureties. The declaration stated that
heretofore, &c., in the county of Chester, to wit, on., &c., " before Lee
P. Townshend, Esquire, and J. H. Harper, Esquire, two of our keepers
of the peace and justices assigned," &c., came Joseph Molyneux, of, &o.,
John Gawley, of, &c., and John Dale, of, &c., and then, before the said
two justices, in the said county, by a certain recognisance, severally
acknowledged themselves to be indebted, &c., on condition that the said
Joseph Molyneux should keep the peace towards John Wovsley, of, ftc^
^... for six months. *The declaration then averred a breach of the
^ peace by the said Joseph Molyneuz, and the forfeiture of Joha
Dale's recognisance in consequence.

17 ADOLPHUS & ELLIS. N. S. 66

Demurrer. Joinder*

The points stated for defendant were : 1. « That it does not appear
by the writ that the Crown Offipe Rules of Hilary Term, 1844,(a) Nob.
24 and 25, have been complied with : 2. That the Christian names of
the magistrates before whom the recognisance was taken are not suffi-
ciently stated."

W. H. Oolej in support of the demurrer. — The writ is irregular.
[Lord Campbell, C. J. — ^You say that the writ itself ought to show,
on the face of it, that the regulations, in respect of the recognisance,
were complied with.] Tes. The second objection b, that the Christian
names of the magistrates are not properly stated. The cases are con-
flicting : Miller v. Hay, 8 Ezch. 14,t is an authority in support of t&is
objection ; Lomax v. Landells, 6 Com. B. 677 (E. C. L. R. vol. 60), is
against it. [Erlb, J.-^Is there any decision that all proceedings are
void in consequence of such an irregularity ? In a commission of oyer
and terminer I have seen the initials only of the Christian names in-
serted ; would that render inyalid all sentences pronounced by a Judge
named in the commission ? In actions on bills of exchange, and other
civil actions, the objection has been taken on special demurrer. But I
recollect no instance of the point having been raised in criminal pro-
ceedings.] The objection is, no doubt, a technical one ; still the part
of the declaration in which the irregularity occurs is material, and
cannot be treated as mere inducement. *The proceeding is itself ^^^^
vexatious. [Erlb, J. — ^Is there any instance of such a point being '-
taken on a recognisance to keep the peace ?] A scire facias on such a
recognisance is not an ordinary proceeding.

Cozanf contri, was stopped by the Court.

Lord Campbbll, C. J. — I see no hardship upon the defendant in
bringing a scire facias upon such a recognisance. If the objection be fri-
volous, we must overrule it. There is no authority for holding the scire
facias to be void for the recognisance not appearing to comply with
the Crown Office Rules. With respect to the second objection, I do
not see that there ia any reason for supposing that the magistrate's
actual name is not "J. H. Harper." The objections which might be
raised as to this' point upon a bill of exchange do not appear to me to
apply to proceedings like these. Nor can I acquiesce in the distinction
suggested, in Lomax t^. Landells, 6 Com. B. 681 (E. C. L. R. vol. 60),
between a consonant and a vowel. There is no doubt that a vowel
may be a good Christian name ; why not a consonant 7 I have been
informed by a gentleman of the bar, sitting here, on whose accuracy
we can rely, thai he knows a lady who was baptised by the name of
«« D." Why may not a gentleman as well be baptised by a consonant 7

Paitbson, J. — The first objection is upon a mere point of practice,

^ (a) Ooner'a Crown Ofioe Formi^ pp. 1, A.

66 KEGINA v. DALE. E. T. 1851.

which does not affect the record. The second also appears to me to be
quite unfounded.

WiQHTMAN and Erlb, Js., concurrecl-

Judgment for the Crown.(a)

(a) Sea, u to the lint pointy Regina v. Irwin, 9 Iriah Eq. Rep. 5i6.

*67] *In the Matter of JAMBS EDMUNDSON. Majf 9.

An ai^adioation bj two joatieei, under The Lands Claasee Conaolidation Act, 1845, and Railwaji
ClanBea Consolidation Act, 1845, of the sam (below bOl.) to be paid by a railway company as
oompensation to a party whose lands hare been injuriously affected by the exercise of their
statutory powers is an order within stat 11 A 12 Viet. o. 43, s. 1, and is bad, under sect 11,
if the complaint on which the order is founded be made more than six calendar months after
the cause of oompUunt arose.

Such order may be brought up by certiorari, to be quashed.

R. Hall, in last Hilary Term, obtained a rule calling on Joseph
Gh'eenwood and William Bushfeild Ferrand, Esquires, two justices for
the West Riding of Yorkshire, to show cause why a certiorari should
not issue to remove into this Court the order after mentioned, on the
grounds (among others): "that the said justices had no jurisdiction in
the matter respecting which the said order was made ; that the said
order shows, on the face thereof, and the fact also is, that the cause or
several causes of complaint therein mentioned did not, nor did any of
them, arise within six calendar months before the making of fhe said
order or the making of the complaint, or laying of the information,
whereon the said order was made ; that the said justices had notice, on
the hearing, that the said cause or causes," &c., << did not, nor did any
of them, arise within six calendar months as aforesaid ;" « that the sum
awarded comprises compensation for injuries and damage for which the
justices had no jurisdiction to award compensation, to wit :" the said
trespasses, and the compensation awarded, in respect of the road in the
order mentioned : « that the supposed damages and injuries were not
done in the exercise of any statutory power ; that none of the notices
or prooeedings under which alone the said damages and injuries would
*({R'\ ^^ ^^^^ ^^ ^^^ exercise of the statutory powers referred to *in the
^ order, so as to give jurisdiction to justices to award compensation
in that behalf, are alleged on the face of the said order, nor were any
such notices ever given or proceedings ever taken."

The order, a copy of which was annexed to the affidavits on behalf of
the Company, recited a complaint made 18th September, 1850, where*
in it was stated before the said justices that the said James Edmundson
was, at the time, &c,, and still was, the occupier of certain closes and
a road adjoining the railway of the Company ; that the CAipany, in

17 ADOLPHUS & ELLIS. N. S. OiJ

exercise of their powers under their special Act (a) and the other acts
incorporated therewith,(i) in the years 1846, 1847, during the forma-
tion of the said railway and the progress of the works thereof, did great
damage and injury to the said closes, and to certain of the fences, &c.,
of the said closes, and to the surface, &c., of the said road, by throw-
ing, &c., large quantities of timber, wood, and stone in and on the said
closes and road, &c., and by causing part of one of the said closes to
be flooded with water, &c. ; for which damage and injury, amounting to
ZIL 15»., the said J. E. had not received aoy compensation : that the
amount of the said compensation could not be settled by '^'agree- ^^^^
ment between the said J. E. and the Company; and that the ^
proper summonses and notices had been sent to the Company, who had
not appeared before the said justices. The order then proceeded to
state that the justices, having heard the n^atter of the said application,
and examined J. E. and his witnesses upon oath, and no evidence being,
tendered on the other side, did << ascertain, determine, and settle" the
said amount of compensation at 81{. 15». ; and did << adjudge the said
Company to pay the same" to the said J. E., with 62. 13«. 8d. costs, <ton
demand."

Joseph Addison (on behalf of Mr. Ferrand) now showed cause. — A
certiorari cannot issue to bring up this order. It is an order of adjudi-
cation made by two justices under The Lands Clauses'' Consolidation
Act, 1845, 8 & 9 Vict. c. 18, and The Railways Clauses Consolidation
Act, 1845, 8 & 9 Vict. c. 20, which are incorporated with the two spe«
cial Acts of the Company. In sects. 145^ 156, respectively, of these
statutes, it is enacted that no proceeding in pursuance of them or any
Act incorporated therewith shall be removed by certiorari or otherwise
into any of the Superior Courts. Clauses expressly taking away the
right of certiorari have always been strictly enforced. The cases are
collected in Archbold's Crown Practice, p. 155. It is objected that, by
8tat. 11 & 12 Vict. c. 43, s. 11, the order is bad, inasmuch as the mat-
ter of complaint did not arise within six calendar months before the-
making of the complaint. The objection must be maintained to the
extent of showing want of jurisdiction ; otherwise this Court cannot
review the decision of the *magistrates, no other objection appear- p^^
ing on the face of the order ; Begina v. Bolton, 1 Q. B. 66 (E. C. *-
L. B. vol. 41). *

But, further, stat. 11 & 12 Vict. c. 48, s. 11, does not apply. It
refers only to the recovery of forfeitures and penalties. Here the order

(a) Sut 8 A 9 Viet c. xzxriiL, local and personal, pablio» ''For enabling The Leed^aod
Bradford Railway Company to make a railway from Shipley to Colne, with a branch to Haworth.*
Sect 2 incorporates The Lands Claosea Consolidation Act, 1845, and (exoept so far as relates te
loUi) The RaUwnys Clauses Consolidation Act, 1845 ; and enacts that the prorisions of stat 7 A
8 Viet c lix. (except so far as repealed or altered) shall operate as if re-enaeted.

(h) The other Act mentioned in the argument was 7 A 8 Viet c lix., local and personal, pnblic;
"for nuking a^lway from Leeds to Bradford, with a branch to The North Midland RaUway.'*
VOL. XVII.— 9 F 2

70 RE EDMUNDSON. E. T. 1851.

is an adjadication between the parties, made at the request of both.
If the section were held applicable to cases like the present, the resuh
would be that the time for laying the complaint would be limited only
whe^e the amount is under 502., and the claim consequently within the
jurisdiction of the magistrates, by sect. 22 of The Lands Clauses Con-
solidation Act. [Lord Campbell, C. J. — What is the complaint re-
ferred to, in Stat. 11 k 12 Vict. c. 48, s. 11, as "such complaint?"]
It is described in sect. 1, as a complaint << made to any such justice or
justices upon which he or they have or shall have authority by law to
make any order for the payment of money or otherwise." This is not
an order to pay money, in the sense contemplated by that section : the
essence of this order is the justices' approval of the amount. [Lord
Campbell, C. J. — All judicial orders for payment of money must be
preceded by an adjudication as to the matter in dispute.] Sect. 2 of
the same statute, which empowers justices to issue their warrant for
the apprehension of the party against whom the complaint has been
made, and sect. 19, which empowers them, in certain cases, to imprison
such party, if convicted, with hard labour, show that the statute was
not intended to apply to a claim of a civil nature, but only to com-
plaints and informations partaking of the characteir of criminal pro-
ceedings. It cannot apply to the case of a claim against a corporate
*711 '^'^^y- [J^^^ Campbell, C. J. — Would it not enable magistrates
^ to adjudicate on a claim for payment made against a corporate
body by a servant hired by such corporation ? The case of master and
servant is not within the list of excepted cases in sect. 85.] It may be
questioned whether stat. 4 O. 4, c. 84, applies to corporations at all.
In cases within The Lands Claoses Act, the adjadication is in the na-
ture of a statutory award : it may be made upon ^the application of
eitheV party. If the Company asked for the order, in what sense could
it affect them, so as to fall within sect. 11 & 12 Vict. c. 43, s. 11 ?
[Erlb, J. — How could such a case occur ? The justices, under sect. 22
of The Lands Clauses Act, have jurbdiction only when the claim is
under 50^ How can the company assume that the claim is so limited?]
There might have been a claim made in fact. Sects. 140, 142, of The
Bailways Clauses Act, may be relied on, the former of which has the
phrase «< ordered to be paid." But the acts of the magistrates, there
pointed to, are not acts done in the execution of the ordinary powers
of justices of peace; and to such only stat. 11 & 12 Vict. c. 48, a. 11,
applies. It will also be contended that the subject-matter of complaint
in the present case was not one which is referred to the determination
of two justices by Th« Lands or The Railways Clauses Consolidation
Act, 1845, the latter of which, in sect. 44, lays down the same course
of proceedings in respect of disputed compensation as the former, which
sets but those proceedings at length in sects. 22,. 28, 24. [Erlb, J. —
I do not think the order here is made under any of theso^ctions : they

17 ADOLPHUS k ELLIS. N. S. 71

ipply to cases of disputed compensation for injuries done jbo parties who
ba?e had notice from the company *that their lands have been p^,.^
taken, and whose lands have afterwards been injuriously affected ^
through such taking : that is clear from the words of sect. 22. The
present case is that of a neighbouring landowner, whose property has
beemdamaged by the works of the Company.] It has been decided, in
Begina v. Eastern Counties Railway Company, 2 Q. B. 847 (E. C. L. R.
vol. 42),(a) that compensation may be claimed, under clauses of a special
Act not substantially differing from the clauses under discussion, for
injury done to lands which have not been taken by the Company.
[Eelb, J. — Sect. 68 of The Lands Clauses Consolidation Act, 1845, is
the clause corresponding to the clauses there decided upon.] Sect. 6
of The Railways Clauses Act clearly includes the present case. It
enacts that compensation is to be made, by the Company, to the owners
and occupiers of i< and all other parties interested in any lands taken
or used for the purposes of the railway, or injuriously affected by the
construction therof," « for all damage sustained by such owners, occu-
piers, and other parties, by reason of the exercise, as regards such
lands, of the powers" by this Act, or the special or any incorporated
Act, vested in the Company ; the amount of such compensation, except
where it is otherwise provided by this or the special Act, to be ascer-
tained and determined according to the provisions of The Land Clauses
Act. Now the order itself here states, on the face of it, that the acts
in respect of which compensation is claimed were acts done in pursu-
ance of the powers vested by statute in the Company. They clearly
amounted to a temporary occupation under sect. 32 of The Railways
^Clauses Act ; all compensation in respect of which is, by sect. 44 ^^.^
of the same Act, to be determined according to the provisions of ^
The Lands Clauses Act. [Eblb, J. — That is, in the present ctfse, by
two justices, the amount being under 502. : the question, therefore, after
all, is whether the order for payment is within stat. 11 & 12 Vict. c. 48,
8. 11.] The argument then is that this is an assessment of amount,
and not an order ; and, further, that, to raise the objection under stat.
11 k 12 Yict. c. 43, s. 11, the order, if it be one, must show upon the
face of it that the matter of complaint did not arise within six calendar
months before the making of such order.

T. F, JEUU (for Mr. Greenwood) did not oppose the rule. ^

JZ. HaUj contri^ was stopped by the Court.

Lord Campbell, C. J. — We understand it to be the wish of both
parties that we should pronounce at once as to the validity of this order,
without deferring our judgment till it is brought up by certiorari. I
am of opinion that stat. 11 k 12 Vict. c. 48, s. 11, applies to the pre-
sent case, and that the order is bad, inasmuch as the matter of com-
plaint did not arise within six calendar months before the complaint

(a) See aioYW «. North Staffordihira RaUwaj Compftny^ 16 Q. B. 912 (B. C. L. R. roL H).

73 RE EDMUNDSON. B. T. 1851.

was made. I think it is clear that this is an otder within the Fcope
and meaning of the statute. The words of sect. 1, with reference to
which sect. 11 must be read, are very broad ; they are «< any order for
the payment of money or otherwise.'' The present order is made under
the provisions of the Railways Clauses Consolidation Act, 1845. That
^. .^ Act clearly treats as orders the ^decisions by justices for which

►74]

The Lands Clauses Act provides in cases of disputed compensa-

tion, by sects. 22, 24. Sect. 140 of The Railways Clauses Act speaks
of the sums awarded in such cases as <« ordered to be paid" by the jus-
tices ; who, in default of payment, may issue their warrant of distress.
It has been contended that such an order amounts only to an award ;
but it is, at all events, an award under a statutory power, which power
enables the referee to order payment of the sum awarded, and to issue
a warrant of distress in default of payment. That is clearly an order
within' Stat. 11 k 12 Vict. c. 43, s. 11. Mr. Addison contends that
the machinery of stat. 11 & 15 Vict. c. 43, does not apply to a corpo-
ration : there is, however, enough in that Act to bring a corporation
within its scope, inasmuch as it comprehends a power of distress for
raising sums which the magistrate orders to be paid. The order, there-
fore, as it is not in accordance with the provisions of that section, ia
bad.

Pattbson, J. — The question in this case is whether stat. 11 & 12
Vict. c. 43, s. 11, applies to an order of justices under the provisions
of the Railways Clauses Consolidation Act, 1845. Sect. 1 of the for-
mer Act defines the orders to which sect. 11 refers, as «<any order" by
justices «< for the payment of money or otherwise." I was in some
doubt under what particular section of The Railways Clauses Act or
The Lands Clauses Act, with which the former, as regards cases of dis-
puted compensation, is incorporated, the order in the present case was
made. It appears, I think, to have been under sect. 6 of the former
Act, which provides for cases of disputed compensation to parties whose
^-_ lands *have been <Mnjurious)y affected." Those cases are clearly
-^ to be settled, where the claim is under 502., according to sect. 22
of The Lands Clauses Act ; that is, by two justices, who have power,
by sect. 24 of the same Act, to << hear and determine" the cases so re-
ferred to them by the Act. No particular mode of enforcing the deci-
sion is provided by the Act, either where the question is referred to
two justices, or where it is brought before a jury : and the question as
to the mode of recovering the sum awarded, whether by mandamus, or
an action of debt, or otherwise, has been frequently raised. It seems
to me that, as sects. 22, 24, provide no method of enforcing payment,
the case is within sect. 140 of the Railways Clauses Act, and the paymtot
may be enforced by distress. But for this there must be an order.
That will bring the case within stat. 11 k 12 Vibt. c. 48. Therefore,
the complaint, here, not having been made, as sect. 11 of that Act

17 ADOLPHUS A ELLIS. N. 8. 76

directs, within six calendar months after the cause of complaint arose,
the jastices had no jurisdiction to make such order.

WiOHTMAN, J. — ^It is not very important to ascertain the precise
nature of the damage for which compensation has been claimed in the
present case : it comes, I think, at all events, within sects. 22, 24, of
The Lands Clauses Act, by which disputed cases of compensation to
parties whose lands have been «« injuriously affected," if the damage be
under 502., are to be settled by two justices. The question is, whether
an adjudication of this description is an order within stat. 11 & 12
Vict. c. 48, s. 11. It is true that the word «< order" is not used in the
instrument of adjudication ; but it is clearly in the nature of an order,
and within the very broad '''language of the first section of stat. p^-/.
11 ft 12 Vict. c. 43. That being so, there can be no doubt that ^
it is bad by reason of the complaint having been made more than six
calendar months after the cause of complaint.

Erlb, J. — It seems to me that this order has been made under sect.
24 of The Lands Glauses Consolidation Act. And if it is within stat.
11 ft 12 Vict. c. 48, it is bad, not being within the restrictions of sect.
11 of that Act. I think that a decision by the justices of the sum that
is to be paid amounts to an order to pay that sum : and the language
of sect. 140 of the Railways Clauses Act clearly shows that it is
treated by that statute as such ; consequently the order in question is
within stat. 11 ft 12 Vict. c. 48, and is therefore bad, for the reason
L have stated. It is of great importance that it should be known, as
magistrates have exclusive jurisdiction in cases like these, where the
amount claimed is under 502., that the time for making the complaint is
limited to six months after the cause of complaint arises; and that, where
the amount is above 502., the time is either unlimited, or is, at all ewnts,
not limited by stat. 11 ft 12 Vict. c. 48, s. 11. Rule absolute.

*The QUEEN v. LONGHORN. May 12. [*77

Under stat Z k i Viet e. 64, s. 2, whieh, for the repayinent to pariehea or eoantief of ezpensef
ineorred ia the nainteiiAnce, Ae., of oriminal lunaties, enables jnsticee to order the OTerseers
of toy parish where money, goods or chattels, of the Innatie, shall be, to selie the money, or
seize and sell the goods and obattels, Justices oannot aathoriie the orerseers to lery a debt
churned as dae to Uie Innatio, by ordering them to seiie a sum of money in the possession of
the aUeged debtor. ^

And, on motion for a mandamus, at the Instance of snob oTerseM^ ealUng upon the alleged
debtor to pay theiA such money, the proseontors addacing eridence to show that snch debt was
doe, and that the warn demanded was in the possession of the aUeged debtor, the Conrt, on
caose shown, refused a mandamus.

A BULB nisi was obtained, in last Hilary term, for a mandamus call-
ing upon Edward Longhom to deliver up to the overseers of the poor
of Old Hutton and Holmescales in the county of Westmoreland the
•urn of 134Z. 18«. 6d., alleged to be in his hands and to belong to

77 REOINA V. LONGHORN. E. T. 1851.

Richard Simpson, a Innatio. The material facts shown on affidavit for
and against the rale were as follows.

Richard Simpson, a prisoner in the gaol for Westmoreland under
charge of murder, was tried on 9th August, 1845, and acquitted on
the ground of insanity. Two justices, with a physician and a surgeon,
afterwards, and while Simpson was still a prisoner, certified to a Sec-
retary of State, according to stat. 3 & 4 Yict. c. 54, s. 1, that Simpson
was then insane : and he was, by the Secretary's order, removed from
the gaol to a lunatic asylum, where he remained at the time of the
present application. Two justices, under sect. 2 of the statute, made
an order (November 8, 1850), adjudging Simpson's settlement to be in
the township of Old Button and Holmescales in Westmoreland ; and,
it having been proved to them (as the order recited) that the lunatic
had lands and tenements in that and other townships, and that Edward
Longhorn of Old Hutton in the said county, shoemaker, was possessed
of a large sum, viz., 195Z. 4«. lOd., of the property of the lunatic, which
^^^^ had arisen from '''the sale of an estate belonging to him, called
■^ Owebank and Fellend, in the first-mentioned township, the two
justices did order and authorize the said overseers to take and receive
so mach of the annual rents and profits of the said lands and tenements,
<( and to seize so much of the said money so in the possession of {he
said Edward Longhorn as aforesaid, as may be necessary" to pay the
charges of inquiring into the insanity, &c., and of the removal, and the
maintenance, clothing, medicine, and care of the lunatic, incurred or to
be incurred, &c. The order also recited proof given to the justices of
the several sums making up the expense incurred as above mentioned ;
and it ordered and directed the said overseers to seize so much of
the money so in possession, &c., and to receive and take so much of
the annual rents, &c., as might be necessary to pay the several specified
sums, making in the whole 134/. 18«. 6«. One of the overseers served
a copy of the order upon Longhorn, and required him <« to pay" to the
said overseers « so much of the money so in the hands of the said E. L.
as aforesaid as would be necessary to pay the said several sums afore-
said, making in the whole," &c. Longhorn referred the matter to hia
attorney, who answered that Longhorn could not safely pay over the
said sum of 1342. 18«. 6d. ; and it was not paid.

Longhorn himself made affidavit that, in 1842, he lent 500Z. to Simp-
son ; who, to secur^ayment thereof, with interest, gave him a mort-
gage, dated February 12, 1842, of a messuage, &c., called Owebank
and Fellend, with proviso for redemption by payment at a day named
(the day following), and power, on default, to sell, receive the purchase-
money, and, after 'retaining the debt, interest, and costs, to pay the
overplus, if any, to the use of '^'Simpson, his executors, adminis-

*79]

trators, or assigns, or as he or they should direct. That, on 1st

June, 1849, default having been made, Longhorn sold the estate, re-

17 ADOLPHUS & ELLIS. N. S. 79

oeived the parchase-money, and, retaining his debt, interest, and costs^
paid the overplus, amounting to 195Z. 4«. 10«., into the Bank of West-
moreland in his own name : that it still remained there : and that he
had no money or property, or control over money or property, of Simp-
son, «( except such trust fund." That, after Simpson was in custody
for the murder, and before his trial, he executed a deed conveying all
his real and personal estate to Thomas Webster and two others, for
payment of the costs of his defence, and his debts, and with an ulti-
mate trust for the benefit of his family. That, since the sale, and
receipt of purchase-money, by Longhorn, Webster had applied to him
for the overplus, which he had declined to pay, being informed by his
attorney that questions might be raised as to the validity of the deed
executed while Simpson was in custody for the said offence, and as to
Simpson's competency to execute it. That, on being served with the
said order of justices, Longhorn, by his attorneys, obtained counsers
advice, which was that he could not safely direct any part of the over-
pins to be paid to the overseers ; nevertheless he had offered to pay
the amount demanded, on being indemnified : that he had no interest
in the 1952. 4«. lOd., except as trustee thereof, and was still willing
to pay it over on having a legal discharge or indemnity ; but he was
advised by counsel that the said trust fund was not liable to be seized
by virtue of the order, and that, if he directed the bankers to pay it
over, he might be liable for a breach of trust, and the overseers could
not give him any legal discharge.

*Orompton now sho.wed cause on behalf of Longhorn.(a) {A, ^^^^
W. Hoggins appeared on behalf of the bankers.) — The powers ^
given by stat. 3 & 4 Vict. c. 54, sects. 1, 2, in the case of insane per-
sons imprisoned for criminal offences, having been exercised in respect
of Simpson as stated in the aflSdavit, the present application is made
under sect. 2,(a) which empowers two justices to make orders for the
maintenance, &c., of any such prisoner, and, if it appear that he has
property, to direct the overseers to seize the money, or seize and sell
the goods and chattels, or receive the rents, to the amount requisite
for payment of the charges. Longhorn has offered payment under an
indemnity: without it he is unsafe; for he would not be secure, as

(o) Stat 3 A 4 Vict e. 64, i. 2 (not affected by itat 16 k 17 Vict c. 97 ; see sect 133 of the
latter itatote), enaott that, <* if it shall appear, upon ioqairj, to th^aid or anj other two jostioes
of the county," Ac, " where inch person is imprisoned, that an^Ah person is possessed of pro-
perty, sneh property shall be applied for or towards the ezpe^pincnrred or to be hereafter
inenrred on his or her behalf, and they shall from time to time, by order under their hands, direct
the overseen of any parish where any money or securities for money, goods, chattels, lands, or
tenements of such person shaU be, to seise so much of the said money, or t^ seize and sell so
maeh of the said goods and chattels, or receive so much of the annual rent of the lands or tene-
ments of such person, as may be neoessary to pay the charges, if «ny, of inquiring into such
person's insanity, and of removal, and also the charges of maintenance," Ac, " of any such
insane person, accounting for the same at the next special petty sessions of the division," Ac,
''in which such order shall have been made, such charges having been first proved to the satia*
Cution of sueh justiees, and the amount thereof being set forth in such order."

80 REGINA t;. LONGHORN. E. T. 1861.

magistrates now are by 8tatate,(a) in obeying an order of the Court.
This sum has been deposited in the bank subject to a trust which is
valid unless it can be shown that Simpson was insane when he executed
^^.^ the deed. The application to ^take it out would be matter for a
■^ suit in equity, in which, perhaps, an issue would be directed to
try the validity of the conveyance. [Patteson, J. — The order of jus-
tices here seems to contemplate things that can be taken into manual
possession ; it does not authorize the overseers to sue.] The sheriff,
under a fi. fa., may, by stat. 1 & 2 Vict. c. 110, s. 12, seize and sue
upon certain securities ; but this authority does not extend to debts
generally ; Harrison v. Paynter, 6 M. & W. 387 ;t(i) and it was held not
applicable to purchase-money deposited by a vendee in the hands of a
third person in trust for the vendor ; Robinson t;. Peace, 7 Dow). P. C.
93. But, further, if the overseers have power under the order to take
these funds, they may seize them without a mandamus.

The Court then called upon

Cowling J contri. — The defendant alleges the claim of persons enti-
tled under a trust deed, which is not valid, according to Jones v. Ash-
urt, Skinn. 357. There a prisoner, about to be tried for burglary,
made a bill of sale of his goods, intending them to be a provision for
his son ; but Holt, G. J., held the bill fraudulent, as made to prevent
a forfeiture. [Lord Campbell, C. J. — There the party was convicted ;
here Simpson was acquitted.] The case differs in that respect from
Jones v. Ashurt ; but the deed is vitiated by the intention. And there
is evidence here of Simpson's insanity before and shortly after he exe-
cuted the deed, if not at the time. The parish oflScers cannot be called
upon to give an indemnity, at least without some special reason. It is
suggested that there might be a remedy in equity; but Longhorn is
^j.,^-. not properly a *trustee. [Patteson, J. — I do not understand

"-' how the justices can authorize the overseers to deal with debts
owing to the lunatic] The debt is within the words «< money," <« goods"
and «' chattels" in stat. 8 & 4 Vict. c. 54, s. 2. [Lord Campbell, C.
J. — You must contend that, if the debt had been for goods sold and
delivered, or on a bill of exchange, the overseers might have been
ordered to recover it. Can the justices try the validity of the debt ?]
Perhaps, if that were doubtful, they could not make the order. [Lord
Campbell, C. J. — It is a matter of great dispute here, whether Long-
horn was debtor. P^^SON, J. — As a debt follows the person of the
debtor, it would seem^^result from the argument that there might be
an order of this kind upon the overseers .of any parish where he might
happen to b#. Or, if the alleged debtor had property in different
parishes, there might be several orders under the statute.] The conse-
quence from the debt following the person must be admitted. [Pattb-

(a) 11 A 12 Viot e. 44, e. 5.

(6) And see Wood v. Wood, 4 Q. B. 897 (B. 0. L. B. toL 45).

17 ADOLPHOS k ELLIS. N. S.

BON, J. — Where do you find any words authorizing the overseers to sue
a debtor of the lunatic ? Lord Campbell, C. J. — That is the point :
what makes the. debtor liable to such an action?] At least the Court
may grant a mandamus to try this question. [Lord Campbell, C. J.
— ^It would be a great hardship on the defendant.] The overseers also
are under a hardship. Decisions relating to the duty of a sheriff do
not apply to this case.

.Lord Campbell, C. J. — The case is not brought within the enact-
ment relied upon. We cannot grant a mandamus. Whether or not
there be any other remedy it is unnecessary to say.
Patteson, J. — The fair construction of the statute is *quite

against this application. The overseers are to <« seise." How

[*88

can they seize a debt ?(a) Rule discharged.

(a) Coleridge, J., wm absent on Moonnt of iU health; Wightman, J., in the Bail Court; Brio
J^ at GaUdhall.

The QUEEN v. The SOUTHAMPTON Dock Company. May 12.

On appeal against a rate, several points being raised on eaeh side, the Sessions gare Judgment
for the appellants on some points, and for the respondents on others (the effect of the Judg-
ment being, npon the whole, in favour of the appellants, by the rate being reduced), subject
at the instance of the appellants, to a special ease. The respondents, who had resoWed not to
dispute the judgment of the Sessions, claimed that the points decided against them should be
inserted in the ease, if brought up, as well as those decided against the appellants. The appel-
lants brought up the case by certiorari: and this Court confirmed the judgment of the Sessions
on all the points : Held, that (he respondents were not entitled to their costs under stat 6 G.
S; e. 19, s. 2. 0

On appeal by The Southampton Dock Company against a rate for
the relief of the poor of the town, &c., of Southampton, the Sessions
reduced the assessment, and awarded costs to the appellants, subject to
the opinion of this Court upon a special case : the rate, as amended by
the Sessions, to be raised or further reduced, amended or confirmed, or
referred back to the Sessions, as this Court should think fit. Several
points had been raised by either side upon the appeal, some of which
the Sessions decided in favour of the appellants, and some for the
respondents. The respondents, as appeared by the affidavit for the
appellants, claimed that the points decided in favour of the appellants
should be stated in the special case, if broug||^ up ; and ultimately all
the points which had been raised on either side were so stated. It also
appeared, by the affidavits for the respondents, that the case was pre-
pared altogether at the instance of the appellants, and not in any way
of the respondents ; and that the case and the order of Sessions
♦were brought up by certiorari by the appellants without the pri- p^^-
vity or sanction of the respondents, who had determined not to ^
dispute the judgment of the Sessions. This Court affirmed the judg-

TOL. XVII. — 10 O

84 REGINA v. DOCK COMPANY. B. T. 1851.

ment of the Sessions upon all the point8.(a) The appellants, upon
bringing up the case by certiorari, had entered into the recognisance
required by stat. 5 6. 2, c. 19, s. 2: and the respondents, after the
judgment of this Court, confirming that of the Court below, obtained
a side bar rule for their costs under the same statute.

(7. SaunderBy in this term, obtained a rule nisi to set aside this rule.

Sewell now showed cause. — The respondents are entitled to costs.
Stat. 5 G. 2, c. 19, s. 2, enacts that the parties prosecuting the cer-
tiorari shall, by their recognisance, bind themselves, under the penalty
of 50Z., << to prosecute the same at his or their own costs and charges
with effect," ^<and to pay the party or parties, in whose favour and for
whose benefit" the order or judgment of sessions was given, «^ within
one month after th« said judgment or order shall be confirmed," their
full costs and charges. The law therefore is that, where the judgment
of the sessions is confirmed, the party impeaching it is to pay the costs
of the other ; and that,- where the judgment is reversed, each party
pays his own costs. Here the judgment has been confirmed ; but the
appellants are the parties impeaching it; for the affidavits of the
respondents show that the case was brought up by certiorari without
their knowledge or sanction, they having previously resolved not to
*ft^l ^^^^^^^ ^^^ judgment of the Sessions. It is '*'true that the
^ respondents required the points which had been decided against
them to be inserted in the special case ; but that request was only con-
ditional upon the case being brought up at all, it being the appellants,
and not the respondents, who desired to take that course. [Lord Camp-
bell, C. J. — Suppose both parties had brought up the case by certio-
rari : do you contend thft neither would then be liable for costs ?] That
^Quld be the result. [Lord Campbell, C. J. — If the respondents take
a part in the arrangement and modification of the special case which is
sent up, and the judgment of this Court is against them, is it equitable
that they should have the costs ? Wightman, J. — There was no abso-
lute necessity for their interference; they might have allowed the
appellants to bring up only the points made by the. appellants. Lord
Campbell, C. J. — The points on the opposite sides were quite distinct.]
The appellants had all the costs below. It was not on their application,
but on that of the respondents, that the special case was drawn up.
[Lord Campbell, C. J. — ^The course taken by the respondents has
increased the amount of^sts very much.]

C. SaunderSy contri, was stopped by the Court.

Lord Campbell, C. J. — The rule must be made absolute. The cer-
tiorari, under the circumstances of the case, must be considered as hav*
ing been prosecuted by both parties ; and consequently neither is enti-
tled to costs.

(a) Beglna o. SoathAmpton Doek Compsnj, 14 Q. B. 587 (B. 0. L. R. toL 68).

17 ADOLPHUS k ELLIS. N. S, 86

Fattesok and WiGHTHANy J8.,(a) concurred.

Bale absolate.

(a) Coleridge, J.| wm Abeent on aeeonnt of ill health.

•FINNEY V. BEESLET. May 13. [*86

Under itat. 1 W. 4, e. 2S, ■. 4, the general role of praotiee fa thai a oommiision to examine wit-
neeaee in a eaose shall not be granted before iseoe joined. Bot a oommission maj be so
granted in an extreme ease and where, without 1^ jastioe wonld be defeated, by the exclaaion
of material evidence.

Am where the plaintiff in an action of promieee applied for a oommisaion immediately after action
bronght and before declaration, intending to try at the next aesises ; and the party whom it
wae proposed to examine was a witness to actual promises, and was to sail in five days for
South Africa, purposing to remain there eighteen months.

WiLLES, in this term, on behalf of the defendant, obtained a rule
nisi to rescind an order made by Wightman, J., on sommonB, that one
of three barristers named should be at liberty to examine John Gallo-
way, of Russell Street, Stratford, near Manchester, a witness on behalf
of the plaintiff in this cause, yiy& voce ; that defendant should be at
liberty to select the examiner, and to join in the examination ; that the
depositions should be returned to the Judge at Chambers ; and that
office copies might be read in evidence at the trial.

The action was on promises : copy of a writ of summons in the cause
was served on April 3d, 1851: on the 4th, defendant's agents gave
notice of being instructed to appear in the cause : on the same day they
were served with a summons, for the purpose of obtaining an order for
a commission to examine as above mentioned ; but the hearing unavoid-
ably stood over. On a second summons the parties were heard, Mon-
day, April 7th, 1851 ; when it was stated on affidavit, as ground for
making the order, that Oalloway was a material and necessary witness,
without whose evidence the plaintiff could not safely proceed to trial ;
that Galloway was going abroad on April 9th, to reside at Port Natal,
in South Africa, and therefore would not be able to attend the trial;
that he had lately returned to England from that place; that he
<Mntenda to continue to reside at Port Natal aforesaid for about eighteen
months ensuing:*' and that the plaintiff '^'proposed to examine him ^^^„
as to a statement of accounts between hinflkl defendant, which ^

proposei
ii^d
3d Woe

defendant in Galloway's presence admitted Woe correct, and promised
to pay plaintiff the sum of 1611. ITa, 6(2., claimed in this action. For
the defendant it was objected that the defendant had not appeared to
the action and was not obliged to do so until the following Thursday,
which was not denied on the plaintiff's part ; and there had, in fact, at
that time, been no pleadings or appearance. The learned Judge over-
ruled the objection, and made the order. An appearance was entered

87 FINNET v. BEESLET. E T. 1851.

on April 10th : but issue had not been joined when this application was
made.

The attorney for the plaintiff gave notice of the order to the attor-
ney for the defendant, at Manchester, where both resided, on April
8th : but the latter attorney declined to appoint an examiner, pro-
tested against the proceedings, and refused to take part in them. - The
examination of Galloway was taken at Liverpool in the evening of the
same day ; and his evidence was material to the plaintiff, who intended
trying the cause at the Liverpool summer assizes. Galloway sailed •
from Liverpool for Port. Natal on April 9th.

To7fdin9(m now showed cause. — The practice has been not to permit
an examination before issue joined ; but there is no rule of law on the
subject except the enactment of stat. 1 W. 4, c. 22, s. 4, which does
not impose this restriction : nor can there be a ground for insisting
upon it in every possible emergency. It is true that the Court of
Exchequer, in Mondel t;. Steele, 8 M. & W. 800,t expressed an opinion
*f^R1 ^^^^^ T^^^t be joined before an '^'examination could be taken

^ under the statute ; but that case ended in an arrangement, the
rule for an examination being made absolute on an undertaking not to
proceed till after issue joined. And it was stated there by Rolfe, B.,
that the practice in Chancery was <« to allow interrogatories to be takea
the moment a bill is put upon the file." [Lord Campbell, G. J. —
There a party may have a bill to perpetuate testimony, even when
there is no suit depending.] The aflSdavits here show ground for
departing from the ordinary practice, if there be not an inflexible rule.
[Lord Campbell, C. J. — I should be sorry to find that there was.]

WilleBj contr^ was called upon by the Court. — There is certainly
no absdlute authority beyond that derived from the statute. But, for
a commission to go, the proceedings should be. in such a state that
perjury could be assigned on the depositions; and that cannot be with-
out an issue joined, to which the matter sworn would be material.
[Lord Campbell, C. J. — The question, on indictment for perjury,
would be, whether the evidence was material at the time of the trial.]
If the Court refuse a commission until issue is joined, they will sub-
stantially follow the precedent of Mondel v. Steele ; and, if inconve-
nience results, it is better that the Legislature should remedy it than
the Courts give conflicting decisions. [Wightman, J. — Sects. 40, 44,
of Stat. 13 G. 8, c. 68, d^^t require that issue shall be joined before
a mandamus is granted IVexamine witnesses in India.] That is so ;
and it appears that, in Spalding v. Mure, 2 Tidd*s Prac. 814, 9th ed.,
a mandamus was awarded, under sect. 44, before issue joined. But
^r^q^ this is a '^'proceeding under a different though analogous Act.

-* [Wiqhtman, J. — ^Your objection, as to perjury, would apply to
proceedings in Chancery.] Those are at common law. [Lord Camp-

17 ADOLPHUS k ELLIS. N. 8.

BMLLy C. J. — The Act, 1 W. 4, c. 22, a. 4, was intended to give us the
ume jarisdictioD that a Court of Equity has, and imposes no limit as
to time.] When a bill in Chancery has been filed, there are averments
to be proved and disproved ; here as yet there are none. The practice

on this subject, in Courts of law, has been constant. In v,

Browne, Hardr. 315, a witness, being in ill health, was examined under
80 order of Court, «« de bene esse, to preserve his testimony, upon a
bill preferred, and before answer ;'* after answer, he died, not having
been again examined ; and the Court of Exchequer, being of opinion
that he might have been examined again after the answer came in
(though his illness had never ceased), ruled that his deposition could
not be read on the trial of an ejectment, « because it was taken before
issue joined in the cause."

Lord Campbell, C. J. — There is nothing for the Legislature to reo-
tify. By the Act 1 W. 4, c. 22, they vested in us a general power to
be exercised with a sound discretion. If we' resorted to them, they
could do no more than re-enact the present clause. (His Lordship
here read sect. 4.) No limitation is there given, except that an action
shall be depending : nor is there any Rule of Court that a commission
shall not be granted before issue joined. Mr. WUle9 relies upon past
practice : and it is, undoubtedly, a safe rule that, unless extraordinary
circumstances occur, practice should be '^'adhered to. But the ^^^^
exigency of a particular case may require us to make an exception ^
where justice would be defeated unless a commission were at once
issued. And the practice in Chancery, of allowing iiiterrogatories
before answer, affords an analogy. The object of the late Act was to
obviate the necessity of going to the Court of Chancery for a commis-
sion, and, for that purpose, to give the same benefit as might, inde*
pendently of the Act, be had there. I do not admit that, on a de))6-
sition taken as now proposed, perjury could not be assigned. With
proper averments I think it might. At all events we will not set aside
the commission. The defendant, if so advised, may dispute the evi-
dence when adduced on the trial.

Pattbson, J. — I am of the same opinion : but our decision is not to
be taken as an authority for saying that, as a matter of course, a com-
mission to examine witnesses may be granted before issue joined. The
general rale remains unaltered : a case like this is an exception.

WiOHTMAN, J.(a) — I thought the case w|| one of necessity, or at
least of extreme urgency : and there was no express enactment or rule
against granting a commission under any circumstances, before issue
joined, though the general rule of practice undoubtedly is that, until
there ia an issue, it should not be done.

Lord Campbell, C. J. — ^I agree that the rule hitherto acted upon

(a) CoUrldgt^ J^ wm abMni on Mooont of m lioalUL

90 FINNET V. BEESLET. E. T. 1861.

^ •

^g^^ must be considered as the governing role ; *the only exception
-* being in a case of extreme urgency, and where justice would be
defeated if the commission were not granted. Rule discharged.

Sir OSWALD MOSLET, Baronet, v. HIDE and COPE. Jdatf 13.

By a nuurUge^iettlementy landfl were oonTojed to tnuteea, to the nee, ftfter the hosband's deat^
of the wife, Judith, daring her life, and on tnut, upon her death, to eell, and etand possesacd
of ihe parchase-raoney, to be divided equally among the ehUdren of the marriage on their
respectively attaining twenty^ne. There were children of Judith's marriage, E. and M. After
the husband's death, Judith surviring him, and B. and IL having attained twenty-one and
married, the trustoes sold the lands :

One of the conditions of sale recited so much of the settlement as is above stated, and that thera
were children, as above, who had attained twenty-one: and it stipulated "that Meh eAf7<fr«M,
or the atrignt or tnuieet of nek of them who kav€ aliened or eettM tkeir eetatee and intereete,
ehtdl, if required, join in the eonveyanee :** ** but no purchaser shaU be at liberty to object to
the title of the vendors on Ae' gromnd that the taiU i§ taking place in the lifetime of the eaid
Judith," Notice of any objection by the purchaser to the vendors' title was to be given before
March 2d.

Before the sale, E. and H. had settled their respective shares in trust for themselves and their
husbands during their respective lives, remainder to their issue respectively : and both had
children underage.

Held, that, as, the children of B. and M., or the trustees on their behalf, could not, if required,
join in conveying to a purchaser, the vendors, trustees of Judith, could not make a good title ;
that the conditions of sale implied that a good title could be so made ; and that the pur-
chaser was not precluded by the conditions of sale from taking this objection.

The purchaser, on receiving an abstract of title, gave notice to the vendors by letter, befora
March 2d, that he objected to the title on the ground that a sale could not be made in Judith's
lifetime ; and he sent, with the letter, a conveyancer's opinion that a title could not be made
during Judith's life, because the trustees under the settlemente of B. and M. could not join
in a conveyance without breach of trust. No other statement of objection was made before
March 2d :

Held, that there was a good notice of the objection which vltimate^ prevailedi within the time
limited.

Assumpsit for money had and received, and interest, and on an ac-
count stated. Particalar of demand, for 4922. 16«., being the ^deposit
paid by plaintiff to defendants on a contract of sale made between
plaintiff and defendants in January or February, 1849, whereby certain
^Qgy. lands and premises at Tutbury in '^'Staffordshire were agreed to be
^ sold and conveyed to plaintiff, and to which lands, &c., defendants
have failed to show a good tltle.(a) Plea, by each defendant, Non assamp-
sit. Issue thereon.

On the trial, before Patteson, J., at the Stafford Spring Assises,
1851, it appeared that |j^e premises in question were put up for sale by
auction on January 2d, 1849, under certain condition, and were bought
in, but were immediately afterwards purchased on behalf of the plain-
tiff (who paid 4922. 16«. deposit), subject, by an agreement which the
purchaser signed, to the above conditions of sale. The defendants Hide
and Cope, the vendors, were trustees under a settlemcfnt made on the

(a) There was a f^irther parttonlari for which we p. M, post

17 ADOLPHUS & ELLIS. N. S. »2

marriage of Rupert Hayne Chawner, sintse deceased, with Judith Hide,
dated 16th and 17th September, 1816, whereby the premises in ques-
tion were limited to the use, after R. H. Chawner's decease, of the said
Judith for life ; remainder to the defendants Hide and Cope and their
heirs, during the life of Judith, in trust to preserve contingent remain-
ders ; remainder to the use of Hide and Cope and their heirs, upon
trust, as soon as convenientlj might be, to sell, and to stand possessed
of the purchase-money in trust for all and every the children of the
said marriage, to be (Uvided equally amongst them, and to be payable
on their attaining twenty-one years of age, as to sons, and, as to daugh-
ters, on attaining that age, or marriage.

There were three children of this marriage living at the time of the
trial, all having attained the age of twenty-one, and two of them, Eliz-
abeth and Mary, married women, who, before their respective mar-
riages, ^mortgaged their respective shares in the proceeds of the p^qq
sale, and, by deeds made in contemplation of the said marriages ^
respectively, bearing date 8d June, 1846, and 26th December, 1846,
settled the residue upon themselves and their respective husbands for
life, with remainder to their respective issue, &c., as they should re-
spectively appoint; and, in default of appointment, to them equally.
There were children living, and under age, of both the last-mentioned
marriages.

The 14ch condition of sale appeared on the evidence to have been as
foUows.

<< By the settlement made on the marriage of the said Judith Chaw
ner, then Judith Hide, spinster, with her late husband," &c., << dated,'
&c., «( the premises, except," &c., <«now stand limited to the use of the
said Judith C. for life, with remainder to the said Messrs. Hide and
Cope and their heirs during the life of the said Judith C, in trust to
preserve contingent remainders, with remainder to the use of the said
MessrSk H. and C. in trust for sale, and to stand possessed of the pur-
chase-money in trust for all and every the children of the said mar-
riage, to be divided equally amongst them, and be payable on their
attaining the age of twenty-one years. And, there being three such
children only, all of whom have attained their respective ages of twenty-
one years, it is stipulated that such children, or the assigns or trustees
of such of them who have aliened or settled their estates and inte-
rests, shall, if required, join in the conveyance to the purchasers at the
purchasers' expense ; but no purchaser shall be at liberty to object to
the title of the vendors on the ground that the sale is taking place in
the lifetime of the said Judith Chawner : nor "^shall the vendors p^g.
be required to enter into any other covenant for title than that ^
they have not respectively encumbered the said premises."

By the 13th condition, an agreement for confirming the sale under
these conditions was to be prepared and executed by the vendors and

94 MOSLEY v, HIDE. E. T. 1851.

purchaser within a given time ; and, in default thereof, either party
might cause a stamp to be put upon a form of contract which was an-
nexed to the conditions. The contract was stamped accordingly : but
an agreement was afterwards prepared (dated February Ist, 1849), and
executed by the plaintiff; and it embodied, in two of its clauses, the
fourteenth copdition of sale. It contained also a stipulation : ('That in
case the said Sir 0. Mosley, or any* person or persons on his behalf,
shall object to the vendors' title, or require any act, matter, or thing to
be done, procured, or executed for completion thereof, notice in writing
of the particular objection or matter required shall be given to the said
Edward John Blair" (solicitor to the vendors) « on or before the 2d day
of March next ; and that, in default of such notice, the said Sir O. M.
and all persons claiming under him shall be considered as having
accepted the title unconditionally ; and that every objection or requisi-
tion not taken or made and so communicated in writing within such
period as aforesaid shall be considered as waived; and that in this re-
spect time shall be considered as part of the contract."

An abstract of title was delivered to the plaintiff's attorneys with the
draft of agreement: and, on March 1st, 1849, they wrote to the de-
fendants* attorneys : «< We return you this abstract with the opinion of
Mr. Vincent Smith upon the title, to which we request your attention,
^q-^ and regret to add that, after a careful perusal of *such opinion,
^ we feel bound to object to the title on behalf of our client, on the
ground that a sale cannot be made in Mrs. Chawner's lifetime." The
opinion referred to was, as to this point, as follows.

"I think it impoBsible for a purchaser to acquire a marketable title or even a safe
holding title, uader a sale made in the lifetime of Mrs. Judith Ghawner, the tenant
for life. According to the trusts of the settlement of the 17th of September, 1816,
the estate is not to be sold till after Mrs. Chawner's decease : if, therefore, it should
be sold in her lifetime, and if, at her decease, the estate should from any circumstance
be increased in value, or the money arising from the sale should, by reason of the
deficiency or failure of any security on which it may have been invested, or^y reason
of any breach of trust, or otherwise, become diminished in amount, I think the sale
undoubtedly might, and in all probability would, be set aside in a Court of equity.
The question then is, whether, notwithstanding the 14th condition of sale, the pur-
chaser is compellable to complete his contract ; and I am inclined to think he is not.
Under that condition the purchaser is entitled to require the trustees of the respec-
tive settlements of the 3d of June, 1846, and the 26th December, 1846, and also the
several mortgagees, to join in the conveyance to him ; from which stipulation it was
fairly to be inferred that their concurrence would sanction or confirm the sale. But,
unless the trustees are authorised by their respective settlements to consent to a sale
in Mrs. Chawner's lifetime, their joining in the conveyance would be useless : in
fact, in the absence of a power or authority for that purpose, it would be a breach of
trust in them to sanction any such sale ; so that, under the 14th condition, the purchaser
is entitled to require the vendors to procure certain acts to be done which would be a
breach of trust in the parties doing them. I think the trustees of the respective
settlements of 1846, so far from being in a position to sanction the sale in Mrs.
Chawner's lifetime, would be bound to take such proceedings as might be necessarj
to prevent any such sale being made, or, if made, to set it aside. At all events the^

17 ADOLPHUS k ELLIS. N. 8. 96

ooald not safely permit the trusteefl of the settlement of 1816 to receive the purchM^
monej. I think the trustees of that settlement have themselves been guilty of a
breach of trust by entering into the present contract ; and I do not think a Court of
equity would decree a specific performance of if

The objection, as altimately taken in this case, and specified in a
farther particular dblivered by the plaintiff, was as follows.

*'« That the defendants were aftd are unable to convey apd r^Q^
assure to the plaintiff a good and marketable title in fee simple to ^
the messuage and premises agreed to be conveyed, during the lifetime
of Judith Ghawner, who, at the date of the contract, was, and still is,
living.

"That the children of the marriage between R. H. Chawner and
Judith Hide were not legally able to join in the conveyance of the said
property to the plaintiff.

«< That the assignees and trustees of such of the children of the said
marriage who have aliened or settled their estates and interests were
not legally able to join in such conveyance.

« That, in consequence thereof, the defendants could not and did not
fulfil their agreement, and were unable to make and convey such a title
as they had undertaken to give to the plaintiff."

The objection was urged at the trial, on behalf of the plaintiffl The
defendants relied on the 14th condition of sale, and contended, further,
that specific notice of the objection had not been given within the time
required by the agreement of February 1st, 1849. The learned Judge
ruled in favour of the plaintiff on both points ; and a verdict was returned
for him.(a) In this term, Whateley on behalf of Hide, and Keating on
behalf of Cope, obtained rules nisi for a new'trial, on the ground that
the jury ought to have been directed to find for the defendants. Gorrall
V. Cattell, 4 M. & W. 784,t was cited.

W. J. Alexander^ Peacock^ and Phip%<m now showed cause. — The
plaintiff ts not precluded from this objection by the 14th condition. He
does not insist that the sale "^is irregular as taking place in Mrs. ^^q.
Chawner*s lifetime, but that, in order to carry it out, her children, ^
or the assigns or trustees of such of them as have settled their estates
and interests, ought, if required, to join in the conveyance ; whereas it
tnrns out that the trustees under the settlements made by Mrs. Chawner's
daughters Elizabeth and Mary, for the benefit of their children, cannot
join, the children being under age ; nor can the children themselves,
the equitable assigns, join. And, that being so, it was not necessary
that the purchaser should actually call upon the trustees or children to
do that which they had no power to do. The 14th condition is an
entire stipulation : no objection is to be taken because Mrs. Chawner is
living ; but the daughters, and the trustees or assigns under |ny settle-
ment created by them, are to join in guaranteeing the title, so that the

(«) A bUl of exoeptions wm teiid«redt but not prooeeded open.

VOL. xvn. — 11

97 MOSLEY v. HIDE. E. T. 1861.

continuance of Mrs. Chawner's life may not create any actual difficulty.
^If she were not alive, the concurrence of these parties would not be
required ; the complaint is that, being wanted by reason of her being
alive, a necessity contemplated at the time of sale, it cannot be had.
The purchaser, then, is discharged, and entitled ifi recover back his
deposit. In Gorrall t;. Gattell, 4 M. & W. 784,t there was a distinct
stipulation that no objection should be made by the purchaser on
account of a particular deed, supposed to be a forgery, but which, on
the trial of the cause, was found to be genuine. There the specific
objection, afterwards taken, was expressly provided against, whether
the deed should be genuine or not. Here the objection is not the
particular one which the condition excludes, but is founded upon the

•'QS]

entire agreement between the '^'parties. As to the time of taking
the objection ; the letter of March 1st, 1849, which is within the
period limited, states, simply, <«that a sale cannot be made in Mrs.
Chawner's lifetime :" this, of itself, might be insufficient ; but the opinion
of counsel, forwarded at the same time, discloses the whole ground now
taken by the plaintiff.

Whateley^ Keatingy and J, Qray^ contr&. — The defendants do not
assert that they have made a good title, but that the agreement on their
part is performed. The stipulation in the 14th condition was intended
only to limit the chances of objection by precluding the. trustees who
might join in the conveyance from alleging at a future time that it was
made during Mrs. Chawner's life. It was not meant that the trustees
should warrant the title : such a provision would have been nugatory ;
for, in equity, no good title could be made in Mrs. Ghawnet*s lifetime.
[Lord Campbell, G. J. — Does not the condition mean. that the trustees
shall join effectually ?] They are to join only if required, which is at
the option of the purchaser. [Lord Gampbbll, G. J. — Their joining,
under these circumstances, would be no safety to him.] That was never
contemplated. He would be secure against the children of Mrs. Ghaw-
ner, and their trustees, but could not be secure against the children of
two of those children. To that extent, but not farther, the vendors
undertake to give title : the plaintiff might, if he thought proper, take
the chances of purchasing with such a title. If it was intended that a
perfectly good title lit law and in equity should be made, or if it had
been certain that such a title could be made, it would have been idle to
stipulate against the equitable objection arising from the continuance
*QQ1 ^^ ^^^^' Ghawner's *life. The trustees could not remove that,
-' but undertook that it should be obviated as far as could be done
by other parties joining. [Patteson, J. — The stipulation as to the
children joining seems to imply that they shall be in a condition to do
so. Lord /!]Iampbrll, G. J. — That their joining shall be of scone use.]
The effect of that stipulation, if it were not qualified by the proviso
against objecting to the sale as made in Mrsi Ghawner's life, would be

17 ADOLPHUS k IlLLIS. N. S.^

a complete warranty.. <'A^'*party may, if he pleases, stipulate for taking
a very imperfect title ; and^'jliere, the parchaser has consented to take
one which carries with it somy risk of being involved in an equity suit.
The argument on the other sidFe ^dUy annuls the 14th condition. But
for the existence of parties who coald* not join, a good title might have
been made in Mrs. Chawner's lifetime}' thd existence of such parties is
the very contingency provided against (and no other can have been
contemplated) in the stipulation that the continuance of Mrs. Ghawner's
life shall not be made an objection. Some effec^r'must be given to that
stipulation ; and it is incumbent on the plaintiff to j^ointout something
in the condition which may have a countervailing effect; : (.On this point
Oray cited the language of Lord Brougham, C, in Thbt^^hl^U v. Hall,
2 CI. & Fin. 22, 86: ^l hold it to be a rule," to ttdecisi^-e the other
way.")

Lord Campbell, C. J. — ^I think the ruling of my brother Patteson
was right. There is no doubt that a purchaser may agree to a bad title,
or none. But the question is, for what the purchaser stipulated in this
case. Properly, the sale ought not to have taken place '''till the r^-inA
death of Mrs. Chawner ; but it was effected in her lifetime ; and *-
the 14th condition of sale is : <« There being three such children" (of
the marriage of Rupert Hayne Chawner and Judith Hide), ((all of
whom have attained their respective ages of twenty-one years," it is
stipulated that such children, or the assigns or trustees of such of them
who have aliened or settled their estates and interests, shall, if required,
join in the conveyance to the purchasers." The question is, what is
meant by that stipulation. The defendants contend that it is enough
if the trustees, without having the complete power, agree to execute
the conveyance. But I think the meaning must be that they shall join,
and have power to join effectually : not that they shall so join as to
commit a breach of trust. They have no powejr on behalf of the children
of Elizabeth and Mary ; and therefore they cannot join in the sense of
the condition : and I think that is an objection which the plaintiff is
entitled to take. As to the time at which the objection was taken : I
think the letter of March 1st, and the opinion, taken together, raised
it saffiqiently, and, therefore, that it was in time.

Pactbson, J. — The argument I have heard confirms the opinion I
entertained at the trial. The trustees under Mrs. Chawner's settlement
were entitled to sell the property and divide the proceeds, at her death ;
and they could, then, have made a good title : but, choosing to sell in
her lifetime, they make known that fact by the conditions of sale.
They could not but know how the estate stood when they published the
conditions. By them they disclosed that there were children of the
marriage of Judith and Rupert Hayne Chawner, but not *that r^iA-i
those children had married, made a settlement of their interests, '-
or had children : and then they stipulate that a purchaser shall not

101 MOSLBY V. Aide. b. t. issi.

object to the sale as taking pl^ce in the lifcftime-of Jadith Chawner.
If the condition had made no reference to iai^.o\^er parties than Judith
and her children, I do not say that th^"pUrcha8er most, not have ran
the risk of sach a title as the traste§s*oan*bow make : bat it is stipulated
here that the children of JaditX *i^ or the assigns or trustees of sack
of them who have aliened or settled their estates and interests, shall,
if required, join in the conveyaiice :'* that is, that all who may be pre-
judiced by the sale sl^^ join : which implies that they are in a capacity
to do so. Whether tlibj^ were so or not was known to the sellers, but
not to the purcbas'em..' It is true that the stipulation, as now construed,
may do away^.w^tk- the other part of the condition : but the condition
is framed .Sy'fiie sellers ; and, if this is the consequence, it is their fault.
The latter part of the condition^ as construed by the defendants, cannot
have been intended by the parties ; nor do I see, on that construction,
what can have been meant by it. I think the whole is tantamount to
a stipulation that all the parties referred to should join, and were in a
capacity to do so.

WiGHTMAN, J.(a) — This appears to me a clear case. The trastees
had power to sell on Mrs. Chawner's death, but not before : her life
was an obvious defect in the titlel It was not to be expected that, in
the face of such an objection, a purchaser would come forward ; and
*1 021 ^^^^^f^^® ^^^ condition was introduced. It is urged '''that all
-' objections to the title were to be taken before the 2d of March,
and that the only objection taken by the specified time was that fronk
which the purchaser was precluded, namely, that Mrs. Chawner was
living. But that is not so. In truth the point taken is hardly an
objection to the title, but rather an insisting on performance of the
condition, namely that the children, or the assigns or trustees of those
who had aliened or settled, should join in the conveyance. The clause
must have been intended (o obviate that defect of title which was evi-
dent, and must be taken to have implied that the assigns or trustees
were in a capacity to join. Rule discharged.

(o) Coleridge, J., wm ibeeni on aeeoa&t of fll lieelth.

XNP OF EASTEB TEBM.

CASES

ABOUED AND DETERMINED

THE QUEEN'S BENCH

EXCHEQUER CHAMBER,

tfrinitij <Krrra anh ^aratton, «

XIV. AMD XV. VICTORIA. 1861.

The Jadges who nsuall j sat in Banc in this Term were : .
Jiord Campbell, C. J. CoLBRiDas, J.

Pattbson, J. Erlb, J.

SIEVEWRIQHT v. ARCHIBALD.

A brolur Mthoiiied by plaintiff to aell 600 toot of Dnnlop't iron, mwle » bwgtlii with defMi4<-
ani to tell it to him for a price exceeding 102. The broker lent a note to the plaintiff ezpreising
that he had sold for him 600 tons Dunlop's iron ; and a note to the defendant expressing that
ha had bought for him 600 tons Scotch iron. Dnnlop's is Scotch iron, hot not the only kind
of Scotch iron. The broker made no signed entry in his book. After this there was a nego-
tiation between plaintiff and defendant as to the terms on which the defendant might be let off
the contract, in which both treated the contract as binding ; but there was nothing to show
whether they Oonddcred the contract to be for Scotch iron generally, or only for Dunlop's, or
that either was aware of the variance in the notes. The plaintiff brought an action as on a
contract to deliver Dnnlop's iron. Non assnmpeit was pleaded ; and at the trial the variance
between tho notea appeared. The declaration was then amended, so as to make the contract
be to deliver Scotch iron ; and the jury found that the defendant had ratified the contract con-
tained in the bought note. Verdict for plaintiff. On motion to enter a verdict for defendant:

Held, by Urd Campbell, C. J., and Patteson and WIghtman, Js., that the varUnce between tha
bought and sold notes was material ; and that there was no sufficient mamorandum of a oon-
traet to satisfy the Statute of Frauds 20 C. 3, c S, s. 17 :

Held, also, that th^re was no evidence, on which the Jury could a6t, of a ratification of the

Brie, J., dissenting upon both points.

Assumpsit for not accepting iron.(a) Plea (among others): Non
Msnmpeit. Issue thereon.

*The cause was tried before Lord Campbell, C. J., at the sit- r^i^ni
tings in London after Michaelmas Term, 1850. The pleadings, '-

(a) Sat pp. 130, us, post

104 8IEVEWRIGHT v, ARCHIBALD. T. T. 1861.

the iDanner in which they were amended, and the points reserved, are
fally stated in the judgment of Lord Campbell, C. J.(a)

Watson^ in the ensuing term, obtained a rule Nisi to enter a verdict
for the defendant pursuant to the leave reserved.

Bovillj in Easter Term,(&) showed cause ; and Watson and Hawkim
were heard in support of the rule. The arguments used and cases
cited will appear sufficiently by the judgments. Our. adv. vult.

In this term (June 17th), the Court being divided in opinion, the
learned Juj^ges delivered separate judgments.

Erlb, J. — In this case it appeared, by the evidence of the broker
at the trial, that he agreed with the defendant to sell to him 500 tons
of Dunlop's iron ; that Dunlop's iron was Scotch ; that he delivered to
the defendant a bought note, in which the thing bought was named
Scotch iron, and to the plaintiff a sold note, in which the thing sold
was named Dunlop's iron : and it further appeared that the defendant
had repeatedly admitted tl\e existence of some contract by requesting
the plaintiff to release him therefrom upon terms.
*W\] '^^^ plaintiff had declared for not accepting Dunlop's *iron:
-* but, on the defendant producing the bought note, so that it was
in evidence, and objecting that there was no contract because the bought
and sold notes varied, the plaintiff then contended that th^ defendant
had ratified the contract expressed in the bought note sent to the de-
fendant. The declaration was then amended to agree with the bought
note ; and the jury found their verdict for the plaintiff, and that the
defendant had ratified the contract alleged in the amended declaration.
I take this to be the substance of the evidence, as stated more fully in
the judgment of the Lord Chief Justice. The defendant obtained a
rule to set aside this verdict for the plaintiff, and enter it for the de-
fendant, on two grounds : First, he contended that in cases where a
contract has been made by a broker, and bought and sold notes have
been delivered, they alone constitute the contract ; that all other evi-
dence of the contract b excluded ; and that, if they vary, a contract
is disproved; and that the notes now in question did vary: and,
secondly, he contended that, if evidence was in such cases admissible,
there was no evidence here to go to the jury to prove the ratification
of the contract alleged in the amended declaration. But, after consi-
dering the argument, it appears to me that he has failed to establish
either ground.

With respect to the first ground : I would observe that the question
of the effect either of an entry in a broker's book signed by him, or
of the acceptance of bought and sold notes which agree, is not touched
by the present case. I assume that sufficient parol evidence of a con*

(a) Poit, p. 130.

(6) April 16Ui. Before Lord Campbell, C. J., PaMeton, Wlghtmaa and Brie, Ja.

17 ADOLPHUS & ELLIS. N. S. 106

tract in the terms of the bought note delivered to the defendant has
been tendered, and that the point is, Whether such ^idence is inadmis*
Bible because a sold note was delivered to the plaintiff? in other words,
^Whether bought and sold notes, without other evidence of in- ^^^ ^^
tention, are by presumption of law a contract in writing? I ^
think they are not. If bought and sold notes which agree are deli-
vered, and accepted without objection, such acceptance without objec*
tion is evidence for the jury of mutual assent to* the terms* of the notes :
bat the assent is to be inferred by the jury from their acceptance of
the notes without objection, not from the signature to the writing,
which would be the proof if they constituted a contract in writing.
This seems to me to be the effect of the evidence 6f mercantile usage
relating to bought and sold notes, given in Hawes v, Forster, 1 Moo.
& Rob. 368, 372, mentioned below ; and this is the ground on which
the verdict in that case is to be sustained, according to the opinion of
Parke, B., expressed in Thornton v. Charles, 9 M. & W. 802.t The
form of the instruments is strong to show that they are not intended
to constitute a contract in writing, but to give information from the
'agent to the principal of that which has been done on his behalf: the
buyer is informed of his purchase, the seller of his sale ; and experience
shows that they are varied as mercantile convenience may dictate.
Both may be sent, or one, or neither ; they may both be signed by the
broker, or one by him, and the other by the party ; the names of both
contractors may be mentioned, or one may be named and the other
described ; they may be sent at the time of the contract, or after, or
one at an interval after the other. No person, acquainted with legal
consequences, would intend to make a written contract depend on sepa-
rate instruments, sent at separate times, in various forms, neither party
having seen both instruments : such a process is contrary to the nature
of ^contracting, of which the essence is interchange of consent
at a certain time. The governing principle in respect of con-
tracts is to give effect to the intention of the parties ; and, where the
intention to contract is clear, it seems contrary to that principle to
defeat it because bought and sold notes have been delivered which dis-
agree. They are theu held to constitute the. contract only for the
purpose of annuUing^it.

It seems to me therefore that, upon principle, the mere delivery of
bought and sold notes does not prove an intention to contract in writing,
and does not exftude other evidence of the contract in case they dis-
agree. Before examining the authorities on which this proposition is
supposed to be founded, I would draw attention to the distinction
between evidence of a contract, and evidence of a compliance with
the Statute of Frauds. The question of compliance with the statute
does not arise until the contract is in proof. In case of a written
contract the statute has no application. In case of other contracts,

[*107

no8]

107 SIEVEWRIGHT v. ARCHIBALD. T. T. 1861.

the compliance nuy be proved bj part payment, or part delivery,
or memorandum m writing of the bargain. Where a memorandom
in writing is to be proved as a compliance with the statute, it differs
from a contract in writing, in that it may be made at any time after
the contract, if before the action commenced; and any number of
memoranda may be made, all being equally originals ; and it is sufficient
if signed by one of the parties only or his agent ; and if the terms of
the bargain can be collected from it, although it be not expressed in
the usual (orm of an agreement ; Egerton v. Mathews, 6 East, 307.

I now advert to the authorities usually cited on this *point.
In Thornton v. Kempster, 5 Taunt. 786 (E. C. L. R. vol. 1), tk')
bought and sold notes could not be reconciled, and no other evidence
appears to have been offered of the contract, and the plaintiff did not
adopt the note delivered to the defendant ; and he was nonsuited. As
the case stands in the reports, there was no evidence of mutual assent
to the contract alleged by the plaintiff* The point was not raised
whether other evidence of the contract was admissible. In Gumming
V. Roebuck, Holt N. P. C. 172 (E. C. L. R. vol. 8), the statement is^
that the bought and sold notes varied ; and Gibbs, C. J., is reported to
have ruled that, if the broker delivers a different note of the contract
to each party contracting, there is no valid contract ; and he nonsuited
the plaintiff. In this case also it does not appear that any other evi-
dence of the contract, besides the notes, was offered ; and if not, this
ruling is in the same way irrelevant to the present question. The
learned Judge is reported to have added that a case, which states the
entry in the broker's book to be the original contract, has been since
contradicted. The facts in relation to which this opinion was expressed
are not given : if it was intended to be unqualified there is authority
and principle against it. In Heyman v. Neale, 2 Camp. 337, an entry
was made in the broker's book, and bought and sold notes were de-
livered, and the defendant returned the bought note, and contended
that there was no contract till the note delivered was assented to.
Lord Ellenborough held that neither party could recede from a contract
after it was entered in the book, that the bought and sold note is not
sent on approbation nor does it constitute the contract, it is only a copy
of the entry, *which would be valid althqpgh no bought or sold
note was sent. In Orant v. Fletcher, 5 B. & G. 436 (£. G. L.
R. vol. 11), the plaintiff proved a verbal contract of purchase by the
broker, and, to comply with the statute, gave in evioence an unsigned
entry in the broker's book, and imperfect bought and sold notes ; and a
nonsuit was supported, because these imperfect instruments did not con-
stitute a sufficient memorandum in writing of the bargain. In the judg-
ment, it is stated that the entry in the broker's book is the original,
and the bought and sold notes ought to be copies of it, and that a valid
contract may probably be made by perfect notes signed by the broker

►109]

17 ADOLPHUS ft ELLIS. N. S. 109

and delivered to the parties, although the book be not signed : the Court
therefore was far from holding the notes, if delivered, to be the sole
evidence of the contract. In Goom v. Aflnlo, 6 B. ft C. 117 (E. C. L.
B. vol. 18), the broker had made an unsigned entry in his book, and
had delivered to the parties signed bought and sold notes; it was
objected that the entry in the book was the original, and that therefore
the notes were inadmissible ; and this objection was only overruled after
argument on a special case. The Court therefore was still far from
recognising the doctrine that bought and sold notes are the contract
itself. In Thornton v. Meuz, M. & M. 48 (E. C. L. R. vol. 22), Abbott,
G. J., states that he used to think the broker's book the proper evidence
of the contract, but he afterwards changed his opinion, and held, con-
formably with the rest of the Court, that the copies delivered to the
parties were the evidence of the contract they had entered into. It is
obvious that this ruling does not follow from the judgments that had
lately preceded it ; it avows a late change- of opinion ;^ it was not acted
on in *the case, so as to nonsuit the plaintLRTs thereon, but the r^^-i^/i
trial proceeded, and the plaintiffs were, nonsuited on another ^
ground ; and therefore there was no opportunity to review the ruling in
banc : and both the last cases are expressed as if a contract in writing
was necessary for a contract of sale of chattels. In Hawes v. Forster, 1
M. ft Rob. 368, the contract, as stated in the bought and sold notes,
varied from the contract as stated in the broker's book. On the first
trial the plaintiffs' note only was in evidence and the broker's book was
excluded. On the second trial, the plaintiffs relied on both the notes,
with the evidence of some merchants stating that they always looked to
the bought and sold notes as the contract, and that, if the note was not
consonant to their direction to the broker, they returned it ; the defend-
ants relied on the entry in the broker's book : the jury were directed to
find for the plaintiffs if the bought and sold notes in their opinion con-
stituted the contract ; and they found for the plaintiffs. This case ought
not to be taken to establish the genei^l proposition of law, that the
notes in all cases constitute the contract. The verdict may well be
supported upon the facts of the case, as the acceptance of the notes
without objection was evidence for the jury of mutual assent to a con-
tract upon the terms expressed in those writings, which agreed. This
view is explained by Parke, B., in Thornton v. Charles, 9 M. ft W. 804,
807,t ^here he says, speaking of Hawes v. Forster : " The jury found
that the bought and sold notea were evidence of the contract, but on
the ground that those documents, having been delivered to each of the-
parties after signing the entry in the book, constituted evidence of a

new contract *made between the parties, on the footing of those

[nil

notes. That case may be perfectly correct ; but it does not y
decide, that if the bought and sold notes disagree, or there be a memo-
randum in the book made according to the intention of the parties, that
VOL. XVII.— 12 H 2

Ill 8IEVEWRIGHT v. ARCHIBALD. T. T. 1861.

memorandum, signed by the broker, would not be good evidence to
eaxisfy the Statute of Frauds." The same learned Judge expresses
himself to the same effect in Pitts v. Beckett, 18 M. & W. 743.t It is
clear also that, if, according to the opinion of the witnesses, there is a
right to return the note if contrary to instructions, the keeping of the
note makes it binding, and not the signature.

These are the principal authorities cited by Mr. Smith on Mercantile
Law, 452, 4th ed., in support of the principal now discussed : and from
this review I gather that, in the greater number of the cases, the doctrine,
that bought and sold notes are the sole evidence of the contract, is not
recognised, nor was the point decided that oth^r evidence of the con-
tract and of a compliance with the statute is inadmissible, if bought
and sold notes have been delivered which disagree. And, if the princi-
ple is not established by direct authority, the manifest evil resulting
from it is a strong ground for believing that4t is not founded on law.

Then, if other evidence of the contract, and of a compliance with the
statute, was admissible, the second question raised by the defendant
remains to be considered, namely whether there was sufficient evidence
to sustain the verdict for the plaintiff. Upon this' point I think the
jury were warranted in inferring that the substance of the contract was
as alleged in the amended ^declaration, and as stated in the de*

*112]

fondant's note. The broker who made the contract appears to

have so understood it, as he so expressed it at the time ; the defendant,
with whom he made it, probably so understood it, as he kept the note
in that form without objection, and treated for a compromise on the
assumption that he was bound thereby, and produced it at the trial as
the contract. The plaintiff might well so understand it ; for, as Don-
lop's iron was a Scotch iron, the article which he intended to deliver
was the article which the defendant intended to buy. There is no evi-
dence that Scotch iron made by Dunlop was better than any other
Scotch iron : on the contrary, it is probable from the conduct of the
parties that the mention of Di)nlop's name was an immaterial accident,
not affecting the substance of the bargain. As, in the case of the pur-
chase of wheat or other article of usual supply by its known denomina-
tion, if the dock where it was stored, or the ship in which it was
brought, was mentioned in one note and omitted in another, the omis-
sion of the place would I presume be held immaterial, so the omission
of the manufacturer of Scotch iron in the defendant's note ought to be
held immaterial if the subject of his purchase was intended to be Scotch
iron ; and his conduct is good evidence of such intention. If the evi-
dence was that the defendant had proposed to buy Scotch iron, and
that the plaintiff had proposed to sell him the article he wanted, namely
Dunlop's, and the defendant had described his contract to be a purchase
of Scotch iron in a memorandum made at the time, the jury would infer
that Scotch iron was of the substance of the contract. The evidence

17 ADOLPHUS & ELLIS. N. 8. 112

DOW in the case appears to me to warrant the same conclasion. If the
sobstance of the contract was as alleged in the defendant's *note, r^^i-ia
that nqte alone would be a sufficient memorandum of the bargain ^
signed by an agent within the statute. The note delivered to the de-
fendant was held sufficient by Lord Eenyon in Rucker v. Cammeyer, 1
Esp. N. P. C. 105 : one note only was offered in evidence by the plain-
tiffs in Powell v. Divett, 15 East, 29 ; and no objection was made on
that account : one note alone was held by Lord Denman to be sufficient in
Hawes v. Forster, 1 M. & Rob. 868 : one note, signed by the defend-
ant, was held sufficient in Rowe v. Osborne, 1 Stark. N. P. C. 140 (E.
G. L. R. vol. 2), though it varied from the note signed by the plaintiiTs
broker which had been sent to the defendant. But it is not necessary
to discuss whether one note alone would ber a sufficient memorandum ;
for, if the substance of the contract was as is alleged, the notes did not
substantially vary. As it was held, in Bold v. Rayner, 1 M. & W.
843,t S- G* ^7^- ^ ^' ^20} ^^^^ several apparent differences in the
terms of bought and sold notes might be reconciled by evidence of mer-
cantile usage in respect of those terms, so, where two descriptions are
used in those instruments of that which, in the intention of the parties,
may be the same^rticle, I think the apparent discrepancy may be re-
moved by evidence of such intention, and that, if both notes were essen-*
tial to the plaintiff's case, both may be reconciled upon this evidence
and held valid ; they not being inconsistent as was the case in Thornton
V. Kempster, 5 Taunt. 786 (E. C. L. R. vol. 1).

If it is further objected, for the defendant, that the question of ratifi^
cation was left to the jury instead of asking them what was the sub-
stance of the contract, it appears to me that the jury intended to find'
that the 'contract was as alleged in the declaration, and ex- r^-i-iA
pressed in the bought note : but, if not, this objection would not *-
warrant the entry of a verdict for the defendant, which is the present
rale ; if the point can be resorted to at all, it goes to a new trial only.
For these reasons my opinion is against the defendant on this second
ground also : and I think his rule ought to be discharged.

Pattbson, J., after stating that it was unnecessary to recapitulate
the facts, as he adopted the full statement in the judgment of Lord
Campbell, 0. J., proceeded as follows.

The Statute of Frauds, 29 C. 2, c. 8, s. 17, requires that some note
or memorandum in vrriting of the bargain be made and signed by the
parties to be charged by such contract, or their agents thereunto law-
folly authorized. The question is, Whether in this case there was any
such note or memorandum in writing signed by the defendant or his
agent ? If there was, I take it to be clearly immaterial whether there
was any such note or memorandum signed by the plaintiff (see Egerton
V. Mathews, 6 East, 807, where the memorandum was signed by the
defendants themselves, not by a broker or agent, and none was signed

114 8IEVEWRIGHT v. ARCHIBALD. T. T. 1851.

by the plaintiff, yet it was held that the statute was satisfied) ; for I
consider that the meraorandam need not be the contract itself, but that
a contract may be made without writing ; and, if a memorandum in
writing be afterwards made, embodying that contract, and be signed by
one of the parties or his agent, he being the party to be charged thereby,
the statute is satisfied. StiU it is plain that, if the original contrtet
was itself in writing signed by both parties, that would be the
^^ ^ .^ binding ^instrument, and no subsequent memorandum signed by

^ one party could have any effect. In this case, the contract was
made by a broker acting for both parties ; but such contract was not
in writing signed by him or them. If there be any writing to satisfy
the statute, it must be some subsequent memorandum in writing signed
by the defendant or his agent. There are subsequent memoranda in
writing signed by the broker, namely the bought an3 sold notes.
Which of these, if either, is the memorandum in writing signed by the
defendant or his agent ? The bought note is delivered to the buyer,
the defendant; the sold note to the seller, the plaintiff; each of them
in the language used purports to be a representation, by the broker to
the person to whom it is delivered, of what he, the broker, has done as
agent for that person. Surely the bought note del^ered to the buyer
cannot be said to be the memorandum of the contract signed by the
buyer's agent in order that he may be bound thereby ; for then it would
have been delivered to the seller, and not to the buyer ; and vice vers£ as to
the sold note. Can then the sold note delivered to the seller be treated as
the memorandum signed by the agent of the buyer, and binding him the
buyer thereby ? The very language of it shows that it cannot. In the city
of London, where this contract was made, the broker is bound to enter in
his book and sign al]*contracts made by him : and, if the broker had made
such signed entry, I cannot doubt, notwithstanding the cases and dicta
apparently to the contrary, that such memorandum would be the binding
contract on both parties. In the case of Hawes v. Forster, 1 M. & Rob.
*l'i(\'\ ^^^' there was such a ^memorandum signed in the broker's book;

•^ there were also bought and sold notes, tallying with each other,
but varying from the book. On the first trial of that case. Lord Den-
man held that the bought note, produced by the buyer (the plaintiff),
was sufficient, and was the proper evidence of the contract, and not the
book, and that no notice to produce the sold note need be given to the
defendant. The Court, on motion, granted a new trial, holding that
this evidence was not the proper evidence of the contract, unless there
was a custom of trade in London that the bought and sold notes, and
not the signed broker's book, were the contract, and considering that
such custom had not been sufficiently inquired into. The case is so ex-
plained by Parke, B., in Thornton v. Charles, 9 M. & W. 802,t and
again in Pitts v. Beckett, 18 M. & W. 743, 746 ;t and my own note of
the case (I having been a member of the Court which granted the new

17 ADOLPHUS & ELLIS. N. B. 11«

trial(a)) 10 in entire eonformitj with that explanation. On the new
trial, the jury found the custom that the bought and sold notes consti-
tated the contract and not the broker's book : a bill of exceptions was
tendered ; but the defendant did not persist, and submitted to the ver*
diet. Possibly, if he had, it might have been held that the bought and
Bold notes, acquiesced in, constituted a new contract ; but that they
coald erer be treated under such circumstances as the original contract
seems to me impossible.

^However, in the present case, there was no signed memoran- r^^^i^
dom in the broker's book : therefore the bought and sold notes ^
together, or one of them separately, must be the memorandum in writ-
ing signed by the defendant's agent, or there is none at all, and the
Btatate will not be satisfied.

If the bought and sold notes together be the memorandum, and they
differ materially, it is plain that there is no memorandum : the Court
cannot possibly say, nor can a jury say, which of them is to prevail
oyer the other ; read together they are inconsistent, assuming the vari-
ance between them to be material : and, if one prevails over the other,
that one will be the memorandum, and not the two together.
^ If, on the other hand, one only of these notes is to be considered as
the memorandum in writing signed by the defendant's agent and bind-
ing the defendant, which of them is to be so considered, the bought note
delivered to the defendant himself, or the sold note delivered to the
plaintiff? I have already stated that I cannot think that either of
them by itself can be so treated. In no one of the oases has the Court,
or a Judge at Nisi Prius, held that it could : all that Lord Denman held
in Hawes v. Forster, 1 M. & Rob. 868, on the first trial, was that proof
of one was sufficient without notice to produce the other, thereby hold-
ing only that the other must be taken to correspond with that pro-
duced, until the opposite party produced the other and showed the
variance. But on the second trial notice to produce the other was
given, and it was produced, and the two corresponded. In Goom v.
Aflalo, 6 B. & C. 117 (E. C. L. B. vol. 13), there was no variance at
til; and the only question was whether, as there was an unsigned
^memorandum in the broker's book, the bought and sold notes r^^io
coald be treated as a memorandum; and the Court held that ^
they could. All three corresponded in that case.

If this were res integr^ I am strongly dbposed to say that I should
hold the bought and sold notes together not to be a memorandum to
satisfy the Statute of Frauds ; but I consider that point to be too well

(«) Th« ease wu argued, befort DeniBMi, C. J., LitUedale, Parke, ud Patteeon, Ji., on May
Mth Md Jane 3d, 1833, bj Sir Jamee Scarlett, D. Pollock, and R. Gumey, for the plaintifb, and
Sir John Campbell, Solidtor-Qeneral, and Blaokbnme, for the defendante. Denman, 0. J^
delirered jnd^nent on June ISth. Vo deeialoA baring beea proaonneed en the question of law,
ike eue was not reported.

118 SIEVEWRIGHT v. ARCHIBALD. T. T. 1861.

settled to admit of discossion ; yet there is no case in which they have
varied, in which the Court has upheld the contract ; plainly showing
that the two together have been considered to be the memorandum
binding both parties : the reason of which is to my mind, I confess,
quite unsatisfactory ; but I yield to authority.

I do not go through and examine all the cases on this subject : they
are collected in the last edition of Smith's Mercantile Law by Mr.
Dowdeswell ; and they show that it has invariably been held that, where
the bought jind sold notes are resorted to ^ the contract, or as the
memorandum of the contract, and they vary in any material point, there
is no writing to satisfy the statute.

It seems to me, therefore, that the only question to be determined in
this case is. Do the bought and sold notes differ in any material point ?
Now the one is « Dunlop's Scotch iron," the other « Scotch iron" gen-
erally : the one would be complied with by delivery of Scotch iron of
any person's manufacture, possibly greatly inferior to that of Messrs.
Dunlop : the other ties the parties down to Dunlop's ; possibly again
that may be inferior to some other Scotch iron. How is it possible to
read the two notes together, and say that they mean the same thing, or
to say that, if you incorporate the one note with the other, that which
specifies Dunlop's iron will not immediately prevail over that wbictf
^-i-iqn does not? I cannot but *think that they are as much at vari-
•^ ance as the bought and sold notes in Thornton v. Kempster, 5
Taunt. 786 (E. C. L. R. vol. 1), where the one was «'Riga" and the other
<« Petersburg'* hemp, and where the Court of Common Pleas held there
was no contract, independent even of the Statute of Frauds. The
broker indeed stated in his evidence that he made the original contract
verbally for Dunlop's Scotch iron ; but how can that evidence make the
bought note, delivered to the defendant for Scotch iron generally, to be
a memorandum signed by the defendant's agent binding the defend-
ant ? The question is, not whether either of the notes corresponds with
the contract originally made by word of mouth, but whether either of
the notes, separately, per se, be a signed memorandum binding upon
either party.

Upon the whole therefore, however much I may regret that such an
objection should prevail, I feel bound to say that in my opinion there
was no evidence in this case of any contract binding on the defendant.

Lord Campbell, C. J. — I regret to say that the view which I take
of the law in this case compels me to come to the conclusion that the
defendant is entitled to our judgment, although the merits are entirely
against him ; although, believing that he had broken his contract, he
could only have defended the action in the hope of mitigating the
damages ; and although he was not aware of the objection on which he
now relies, till within a few days before the trial. But it appears to

17 ADOLPHUS^ft BLLIS. N. 8. 119

me that we cannot refuse giving effect to this objection without r^fioA
^disregarding the Statute of Frauds, without overturning deciled ^
cases, and without danger of introducing uncertainty and confusion into
the rales for enforcing mercantile contracts of buying and selling.

The plaintiff in his declaration set out the following written docu-
ment, stated to be a (< sold note" of certain goods agreed to be pur-
chased from him by the defendant.
<(26 Lombart Street, London, Febfuary 26th, 1849.
« Sold Charles Dickson Archibald, Esq., 48 Upper Harley Street,
for Messrs. Sievewright, Watson & Co., Glasgow, 500 tons Messrs.
Dnnlop, Wilson & Co.'s pig iron, S-Sths No. 1 and 2-5ths No. 3, at 52
shillings per ton, free on board at Troon, payment cash within one
month from this date against orders of delivery.'* This professed to be
signed by c^Wm. Richardson, broker."

The declaration in the usual form aVerred that the iron was duly
tendered to the defendant, but that he refused to accept or to pay for
it. The only material plea was Non assumpsit. William Miller, being
called as a witness, swore as follows. *< I am a metal broker in the
City : plaintiff carries on business at Glasgow under the firm of Sieve-
^wright, Watson & Co. I received instruction from him to sell 500 tons
of Danlop, Wilson & Co.'s pig iron. I sold it to the defendant. I saw
the defendant in London ; he gave me a verbal authority to make the
purchase for him. I agreed with him that he was to be the purchaser
of 500 tons of Dunlop, Wilson & Co/s iron. The name of Sievewright,
Watson & Co. was mentioned as the sellers. On the 26th of February
I wrote a contract and sent it to the defendant in a letter." (The
bought note being called for, it was ^produced by the defendant; r^^n-i
and it corresponded with the sold note set out in the declara- ^
tion, except that, instead of (^ 500 tons Messrs. Dunlop, Wilson & Co.'s
pig iron," it stated ««500 tons of Scotch pig iron." The bought note
being read, the witness continued) " This was enclosed in a letter of
26th February, and sent to the defendant in Upper Harley Street. I
sent to the plaintiff the same day a sold note" (a copy of it was ad-
mitted and read as set out in the declaration). (« Dunlop, Wilson & Co.
are manufacturers of iron in Scotland ; and their iron is Scotch iron."
The defendant's counsel insisted that there was no binding contract
between the parties, there being a material variance between the bought
and sold notes; for, according to the bought note, the seller would
perform his obligation by tendering 500 tons of pig iron made by any
manufacturer in any part of Scotland, whereas by the sold note the
buyer might demand 500 tons of pig iron made by Dnnlop, Wilson k
Co. ; which might be of a peculiarly good quality and of superior repu-
tation in the market. I intimated an opinion that the variance was
material, and that, as there was no entry in the broker's book signed

121 8IEVEWRIGHT v. ARCHIBALD. T. T. 1851.

bj him, and the plaintiff had proposed to prove the contract by the
bought and sold notes, the variance irt^s fatal. The plaintiff's counsel
then said that he had clear evidence to prove that the defendant had
subsequently ratified the contract ; and objection being made that he
could not have ratified the contract as set out in the declaration, I
permitted the declaration to be amended according to the terms of the
bought note.
41-1 991 Miller, the broker, being recalled, after stating that he *had

*'"'-' the delivery orders for the 600 tons of iron ready to be banded
over to the defendant on the 26th of March, said : << I saw the defend-
ant about the end of March. On the 4th of April 'he agreed that I
should propose to the plaintiff to take a bill at four months, and the
delivery orders to be lodged as a security at the Union Bank. The
price of iron had then fallen 5s. a ton. Before the 29th of March, the
defendant had given me unlimited authority to get the transaction set-
tled as I thought fit."

There were read a letter from the defendant to Bichardson of 5th
April, saying : «« You must manage the iron speculation as you think
fit ;" a letter written by Richardson to the plaintiff, saying that " Mr.
Archibald agreed to give a bill at four months ;" the plaintiff's answer
refusing to take a bill at four months, but offering to take one at three
months ; another letter written about the same time by the defendant
to Richardson, saying: («I hope you will conduct it to a successful
issue;" and further letters between the parties, continuing the nego-
tiation till 27th October, 1849, when the defendant denied his liability.
I left the question to the jury, Whether the defendant bad ratified the
contract sent to him, contained in the bought note 7 The jury found
that he had ; whereupon a verdict was entered for the plaintiff for 12&L
damages, with liberty for the defendant to move to enter the verdict for
bim if the Court should be of opinion that there was not evidence to
prove the declaration as amended.

Having heard the rule obtained for this purpose learnedly argued, I
do not think that there was any suflBcient evidence of ratification. No-
thing having such a tendency was done by the defendant before the
*19qi ^^^^ ^^ March, the May on which he ought to have performed
-^ the contract and on which he broke it. What constituted the
ratification ? And what date is to be given to it ? There never waa
any reference by the defendant to the terms of the bought note more
than of the sold note. The variance between them was not known to him
till after the action was brought. Nor was there ever any assent by the
plaintiff to accede to the terms of the bought note, whereby he would
have become bound to deliver Dunlop, Wilson & (Jo.'s pig iron. The
sold note, containing different terms, instead of being discarded by the
plaintiff, was actually declared on by him, and was set up by him aa

17 ADOLPHUS k ELLIS. N. S. 128

the true contract till the declaration was amended. The plaintiff like-
wise sought to recover under a count for goods bargained and sold : but
this could not avail him ; for the defendant never accepted the goods ;
and the contract was not for the sale of anj specific goods, the property
in which could be considered as transferred to him. Recurring to the '
special count, the plaintiff attempted to support it by the parol agree*
ment, alleged to have been entered into between the broker and the
defendant, using the bought note as a memorandum of the agreement
to satisfy the Statute of Frauds. t

In the first place, there seems a difficulty in setting up any parol
agreement where the parties intended that there should be, and under-
stood that there was, a written agreement : what passed between the
defendant and the broker previous to the 26th of February seems to
me to only amount to an authority from the plaintiff to the broker to
enter into the contract : and Miller himself says : «< On the 26th of
FebrvLtkT J I wrote a contract and *sent it to the defendant. I r^^oi
sent a sold note the same day to the plaintiff." Again, the ^
memorandum, under the 17th section of the Statute of Frauds, must
be signed by the party to be charged, or his agent. But, assuming
that the parol agreement was the contract, and that, when Miller wrote
the bought note, it was only to tell his principal what he had done,
there is a difficulty in saying that, being functus officio as far as making
the bargain was concerned, he had any authority to sign the memo-
randum as the defendant's agent, and thereby to charge him. But, if
be had, can this be said to be a true memorandum of the agreement ?
We are here again met by the objection of the variancCj which is as
strong between the parol agreement and the bought note as between
the bought note and the sold note. If the bought note can be con-
sidered a memorandum of the parol agreement, so may the sold note ;.
and which of them is to, prevail? It seems to me, therefore, that we
get back to the same point at which we were when the variance was
first objected, and the declaration was amended. I by no means say
that where there are bought and sold notes they must necessarily be
the only evidence of the contract : circumstances may be imagined in
which they might be used as a memorandum of a parol agreement.
Where there has been an entry of the contract by the broker in his
book signed by him, I should hold without hesitation, notwithstanding
some dicta, and a supposed ruling of Lord Tenterden in Thornton tr.
Meox, M. k M. 43 (E. C. L. R. vol. 22), to the contrary, that thia^
entry is the binding contract between the parties, and that a
^mistake made by him, when sending them a copy of it in the
shape of a bought or sold note, would not affect its validity. Being
authorized by the one to sell, and the other to buy, in the terms of
the contract, when he has reduced it into writing and signed it as their

VOL. XVII.— 13 I

[*125

126 81EVEWRIGHT v. ARCHIBALD. T; T. 1851.

common agent, it binds them both, according to the Statute of Frauds,
as if both had signed it with their own hands ; the duty of the broker
requires him to do so ; and, till recent times, this duty was scrupulously
performed by every broker. What are called the bought and sold
notes were sent by him to his principals by way of information that he
had acted upon their instructions, but not as the actual contract which
was to be binding upon them. This clearly appears from the practice
still followed of sending the bought note to the buyer, and the sold
note to the seller ; whereas, if these notes had been meant to consti-
tute the contract, the bought note would be put into the hands of the
seller, and the sold note into the hands of the buyct, that each might
have the engagement of the other party and not his own. But the
broker, to save himself trouble, now omits to enter and sign any con-
tract in his book, and still sends the bought and sold notes as before.
If these agree, they are held to constitute a binding contract ; if there
be any material variance between them, they are both nullities, and
there is no binding contract. This last proposition, though combated
by the plaintiff's counsel, has been laid down and acted upon in such
a long series of cases that I could not venture to contravene it, if I
did not assent to it ; but, where there is no evidence of the contract
*19f)1 ^^^^^^ ^7 ^^^ bought and sold notes sent by the broker *to the
^ parties, I do not see how there can be a binding contract unless
they substantially agree ; for contracting parties must consent to the
same terms ; and where the terms in the two notes differ there can be no
reason why faith should be given to the one more than the other. This
is certainly a most inconvenient mode of carrying on commercial trans-
actions; from the carelessness of brokers and their clerks mistakes
not nnfrequently arise, of which unconscientious men take advantage ;
and no buyer or seller can be safe unless he sees the sold or bought
note as well as his own ; a precaution which the course of business does
not permit to be taken. But these inconveniences can only be remedied
by the Legislature enforcing upon the broker the faithful performance
of his duty in entering and signing the contract in his book.

In the present case, there being a material variance between the
bought and sold note, they do not constitute a binding contract ; there
is no entry in the broker's book signed by him ; and if there were s
parol agreement, there being jio sufficient memorandum of it in writing,
nor any part acceptance or part payment, the Statute of Frauds has
not been complied with; and I agree with my brother Patteson in
thinking that the defendant is entitled to the verdict.

My brother Wightman, who heard the argument, but is now engaged
elsewhere in the discharge of a public duty, has authorized me to saj
that he has read this judgment and that he entirely concurs in it.
But, the Court being divided, instead of making the rule absolute to

17 ADOLPHUS & ELLIS. N. 8. 120

enter the verdict for the defendaDt, we think that a nonsuit shonld be
entered, so that the plaintiff may *haye the opportunity to bring p^^ ^.
a fresh action, and by a special verdict, or a bill of exceptions, *-
to take the opinion of a Court of error on his rights.

Rule absolute to enter a nonsuit. (a)

(a) Reported by C. Blaekbnrn, Bsq. See m to inspection of the broker's book, Browning e.
Aylwin, 7 B. 4 G. 304 (B. G. L. R. toI. 14).

■■ * - . ' ' ■ - ■'

The form of the memorandum of the without having recourse to parol proof :
bargain is not material ; but it must Bailey v. Ogden, 3 Johns. 399 ; Ide v.
state the contract ^th reasonable cer- Stanton, 15 YermoDt, 685 ; Adams v.
taintj, so that the substance of it can M'Millan, 7 Porter, 73 ; Shaw tr. Fin-
be understood from the writing itself; nej, 13 Metcalf, 453.

CORT and GEE v. The AMBERGATE, NOTTINGHAM and BOS-
TON and EASTERN JUNCTION Railway Company. May 27.

Ob » eontraet for the nuuia&etaring and supply of goods from time to time, to be paid for after
d«lirery, if the .pnrehaser, having aeeepted and paid for a portion of the goods, giToi
nofeiee to the Tender not to mannfaetnre any more as the pnrohaser has no oocasion for them
and will not accept or pay for them, the Tendor having been desirous and able to complete the
supply, saeh vendor may, without manufaotaring and tendering the rest of the goodo, maintain
an aetion against the purchaser for breaeh of the contract

And proof of such notice by the purchaser will entitle the plaintiff to recover, on a count
aUeging that he was ready and willing to perform the contract, and that defendant refused
to accept the residue of the goods, and fr^vMtUd and di9ekarged plaintiff from supplying them.
mad from further executing the contract.

Saeh notice is % prevention, though there be no other act of obstruction.

And it is a diatkarge, though given by a corporation without writing under seal, if it be given
bj their agent, appearing by the evidence to have acted with their authority, and to h»vf»
represented them, in the transactionB with the vendor.

Where, by the terms of su^h a contract, the goods were to be delivered at stated periods, but
they were not aU delivered at the respective times, the purchasers not countermanding them,
bnt requesting, firom time to time, that the supply might be delayed, and finally the purchasers
refased to accept any more : Held that damages might be given for the whole quantity
remaining on hand, though consisting in part of quantities which, without being actually
oonntermaaded, had, by desire of the purohaten^ been kept back at the times appointed for
delivery. And that the jury were properly directed to give such damages as would leave the
pUintiffi in the same situation as if the defendantf had fulfilled their contract

•

. Casb. The declaration stated that, on 14th December, 1846, defend-
»nts, then being about conetrncting the above-named Railway, required
in that behalf, and advertised for, certain railway chairs to be supplied
to them according to a certain specification then made and published
by defendants, and containing and stating* therein, &c. : The specifica-
tion was then set *forth, describing the required make, weight.

and composition of the chairs, and that «< the quantity of chairs

[♦128

required was to be 900|^ons of joint and 8000 tons of intermediate
chairs, and which were to be delivered at such places and in such pro-
portions as hereinafter described ; to wit, to be delivered out of barges

128 CORT t. AMBERGATB, Ac., RAILWAY CO. T. T. 1851.

and placed upon a wharf at Radoliffe upon Trent/* &c. (other places
of delivery for various quantities were then stated); «un the month of
February, A. D. 1847, 60 tons at the Grantham Canal Wharf," &c.
(naming quantities and places,(a) ) *< in the month of March in the year
aforesaid," &c. : the specification, as recited, then went on to require
further deliveries at places and in quantities named, in April, and from
thence monthly till November, 1847, inclusive, and again from January
to May, 1848, inclusive. The tender was to state the price per ton ;
payments to be made by the directors of the Company one month after
delivery, on production of a certificate from the person appointed by
the Company to receive and inspect the chairs that the contract (for
the portion) had been duly performed : the engineer to «< have full power
to alter the deliveries in any way or proportion to the different places
before specified, by sending information to the contractor from time to
time of the manner in which such deliveries were to be made :"(&) the
contractor to be paid according to the prices set forth in his tender.
The declaration then averred that plaintiffs, having notice of the pre-
♦12Q1 °^^^^^* ^^^ thereupon afterwards, viz., on, *&c., propose to defend-
^ ants to supply them with 8900 tons of ca/st iron chairs manu-
factured from strong mixed iron, subject to the conditions and stipulations
set forth in the said specification, and in such proportion of joint chairs
to intermediate or single chairs as described therein as aforesaid, and
also to deliver the same at such places and in such quantities as stated
and described as aforesaid, free from every other charge, and at the
rate, &c. (specifying the rates) : And thereupon afterwards, viz., on 28th
December, 1846, by a certain contract or memorandum of agreement
then made between plaintiffs of the one part and defendants of the
other part, and then sealed with the common seal of the defendants
and delivered so sealed as aforesaid to the plaintiffs, ;ind which, &c.
(profert), it was agreed by and between plaintiffs and defendants that
plaintiffs should and would execute and perform the said proposal accord-
ing to the conditions and stipulations therein set forth and referred to
as aforesaid, and subject to the said specification. And defendants did
thereby agree to pay plaintiffs for the said chairs after the rate and in
manner above mentioned. Avarment that plaintiffs afterwards, vis., on,
&c., and on divers other days, &c., did, in pursuance and part perform-
ance of the said contract on their part, deliver to defendants, and
defendants did accept and receive of and from plaintiffs, 1787 tons of
such chains as aforesaid: and, although one month from the said
respective deliveries of the 'said chairs had respectively elapsed before
the commencement of this suit, and plaintiffs afterwards, and after the

(a) The qusotiUei were to bt from 100 to 356 ton* iii^b<» wbole, per month : placM of
deliverj, Grantham Canal Wharf, Bottosford Wharf, Radolile Wharf, High Bridge Wharf, and
Boston.

(6) Theee wonU were taken neaKy verbatim from the ipeeiiealion.

[♦180

17 ADOLPHUS & ELLIS. N. 8. 12»

expiration of one n^)nt& as aforesaid, and before the commencement of
this suit, viz., &c., ^produced such written certificates as afore-
Baid to the defendants in respect of the quantities of chairs so
delivered as aforesaid, nevertheless defendants have not paid, &c., and
a large sum, viz., 12,1002., is due and unpaid from them to plaintiffs
for and in respect of the said chairs so delivered, &c.

And plaintiffs further say that, although they were always, from the

time of the mali^g of the said contract until such refusal and wrongful

discharge by defendants as hereinafter mentioned, and thence hitherto,

ready and willing to execute and perform the said proposal according

to the conditions and stipulations in that behalf aforesaid, and subject

to the said specification, and to perform and fulfil the said contract in

all things on their part and behalf to be performed and fulfilled, whereof,

&c. (notice to' defendants), and although defendants, in pursuance and

part performance of the said contract on their part, have accepted and

received of and from plaintiffs a certain quantity of the said chairs, to

wit, 1787 tons thereof, and although the time so limited and appointed

for the execution arid performance of the said contract by plaintiffs as

aforesaid hath long since elapsed, nevertheless defendants afterwards,

to wit, during the time so limited and appointed for the execution and

performance of the said contract by plaintiffs as aforesaid, to wit, the

31st January, 1848, wrongfully and injuriously and wholly refused, and

have thence hitherto wholly refused, to accept or receive of or from

plaintiffs the residue of the said chairat so agreed to be supplied to and

received by defendants as aforesaid, or any part thereof, according to

the form and effect of the said contract or otherwise howsoever, and

then, and have thence hitherto wholly and wrongfully prevented

*and discharged plaintiffs from supplying the said residue, and r^-to-i

from the further execution and performance of the said contract ^

by them the plaintiffs. Whereby plaintiffs have lost all the profits, &c.,

and have been put to costs in providing, &c., for complete execution of

the contract, and were obliged to discharge certain persons (named)

from contracts which the plaintiffs had entered into with them for the

BQppIy of iron to be used by plaintiffs in making the said chairs, and

to pay them compensation.

Plea 1. After oyer of the specification and agreement (the material
parts of which appear sufficiently by the declaration) : As to the first
breach, except so far as the same relates to 159Z., parcel, &c. ; payment
by defendants to plaintiffs, and acceptance by them in full satisfaction,
tc. : verification. Plea 2. As to the 159Z., payment into Court of that
sum : which the plaintiffs accepted, and gave a written admission that
it covered the balance due^or chairs actually delivered.

Plea 8. As to so much of the said declaration as alleges that plain-
tiffs were ready and willing to execute and perform the said proposal
sccording to the conditions and stipulations in that behalf aforesaid,

131 CORT V. AMBERGATE, &c., RAILWAY CO. T. T. 1851

and Bobject to the said specification, defendants Say that plaintifis wer«
not ready and willing to execute and perform the said proposal accord-
ing to the said conditions and stipulations and subject to the said spe-
cification, in manner and form, &c. Conclusion to the country. Issue
thereon.

Plea 4. As to so much of the declaration as charges defendants with
having, during the time limited and appointed for the execution and
performance of the said contract by the plaintifis, refund to accept or
*1 ^91 ^®^^^^® ^^^ ^^^^ residue of the said chairs, and prevented and
^•^ ^discharged the plaintifis from supplying the said residue, and
from the further execution and performance of the said contract by
them the plaintiffs, defdndants say that they did not during the said
last-mentioned time refus^ to accept or receive the said residue, nor did
they prevent or discharge the plaintiffs from supplying the said residue
and from the further execution and performance of the said contract
by the plaintiffs in manner and form, &c. Conclusion to the country.
Issue thereon.

Replication to plea 1. That defendants did not pay, &c., nor did
plaintiffs accept, &c., in manner and form, &c. Conclusion to the
country. Issue thereon.

On the trial, before Coleridge, J., at the Nottingham Spring Assizes,
1851, it appeared that the plaintiffs, after the agreement declared upon,
bought premises, made contracts for iron, and, at considerable expense,
and by incurring various liabilities, put themselves in a situation to
supply the 8900 tons of iron chairs. The supply was begun : but in
September, 1847, when the plaintiffs' book-keeper. Smith, called upon
the Company's eikgineer for money, the engineer, who used to give
directions on their behalf as to the delivery of the chairs, requested
that the plaintiffs would go on very slowly with the supply, as he did
not know how to do, the calls not being paid, and he did not know how
far the line would be carried out. Part of the line for which the chairs
had been ordered (ending at Boston) was ultimately abandoned. In
January, 1848, the engineer stopped the supply for a time, saying he
would let the plaintiffs know when more chairs were wanted. The
plaintiffs' establishment for manufacturing the chairs was kept up dur-
ing the suspension, which continued till August. Then the engineer
*'[ ^^1 ^^^^ ^^^ Company could *take a few more, but plaintiffs were to
-* go on slowly. They did so till February, 1849, and were then
again stopped till April, when the engineer desired to have a boat-load
(if plaintiffs had as many) sent to Radcliffe Wharf, which was done.
No more were sent or asked for till December, 1849, when Smith called
upon the engineer for money, and he inquired whether plaintiffs had
any chairs. Smith' replied that Ahej had some, which had been made
a long time. The engineer said that, if plaintiffs had 100 tons, they
might send them, but they were not to make any more, as they would

[♦134

17 ADOLPHUS & ELLIS. N. 8. 188

not be wanted, for the defendants had as many as were necessary to
carry the line to Grantham. Plain tiffs sent all they had, about 53
tons : and no more were sent or required afterwards. During the sup-
ply the payments were not made punctually according to contract ; nor
had the plaintiffs delivered the stipulated quantities of chairs at the
appointed times respectively ; which omission on their part they attri-
buted to the interruptions above stated. A large stock of iron re-
mained on the plaintiffs' hands ; and, besides loss in the disposal of it,
they had to pay money for breaking off engagements which they had
themselves made for the purpose of executing this work. The quantity
of chairs delivered was 1787 tons.

In defence, an endeavour was made to show that the plaintiffs had
not the requisite means to complete their contract, and that the delays
and final cessation took place with their concurrence. It was also
urged that the engineer was not shown to have had such authority as
would make his acts binding on the Company. These points were left
to the jury, who decided them in favour of the plaintiffs.

It was further contended that the averment by ♦plaintiffs in
the declaration, of readiness and willingness to perform their
contract, was not borne out, inasmuch as the plaintiffs had not offered
to deliver, nor had ever made, the residue of the chairs ; nor was it
proved that the defendants had prevented and discharged plaintiffs
from supplying such residue, since it did not appear that the Company
had impeded the delivery by any active interference, or had counter-
manded it under their seal or by any authoritative Cfmmunication. On
the first of these points, Coleridge, J., said : There is no evidence of any
refusal to accept ; no evidence of their having said, for example, << We
insist upon your completing the contract, and, if you do not, we shall
bring an action.*' •There is no offer to send the chairs, and no refusal
to accept ; nor is there the slightest ground for believing that the plainr
tiffs have ever made these chairs : but I think the law is not so unrea-
sonable as to compel parties to be at the expense of making these chairs
if those who contracted to purchase have in truth told them they would
not accept them ; and I think the defendants had given very effective
notice that they were not to be made. On the second point his Lord-
ship said, after reading the material statements of the witnesses : Upon
this evidence you are to say whether or not the directors refused to
accept. Why, they certainly have not in form ; but do they, by any
intervention on their part, cause the plaintiffs not to go on to complete
the delivery ? If you think that they did, then that issue, like the
former, should be found for the plaintiffs ; but, if you think not, then
that issue should be found for the defendants. With respect to the
authority of the engineer to suspend and stop the^work, and the respon-
sibility of the Company for his directions, though not warranted under

184 CORT V. AMBERGATE, Ac., RAILWAY CO. T. T 1861.

^.Qc-i their seal, the learned Judge obseryed: This contract ^was en-
^ tered into under seal by the Ambergate Railway Company, a
corporation, on the one part, who are linder certain disabilities and
disadvantages which do not attach to other people : but the corporation
all the way through seem to have ' been represented by certain indivi-
duals ; and the most important person with whom they (plaintiffs) have
had to do is the engineer ; and I think rightly and properly, and that
he was a necessary man to go between these parties. Without his cer*-
tificate the plaintiffs could n^t get any money ; and, before he would
certify, he would have to be satisfied that they had a perfectly flat
chair.(dr) I shall advise you very much to consider this case as one, in
the particular parts to which I shall draw your attention, in which yon
should look upon everything done by the engineer as if it was done by
the Company itself, as far as the plaintiffs are concerned. As to the
damages, his Lordship said that the plaintiffs, if they had a verdict,
.were entitled to be put into the same situation as if they had completed
their contract ; and he suggested modes in which the damage, upon the
whole quantity undelivered, might be estimated, but without giving any
actual direction upon this subject.

The learned Judge read over to the jury the material parts of the
evidence on all the points ; and they found a verdict for the plaintiffs,
damages 18002.

Macaulay^ in the ensuing term, moved for a new trial on the ground
of misdirection on the points of readiness and willingness, and of .pre-
vention ; and he also objected to the summing up as to the authority
of the engineer, and on the question how far the plaintiffs *were
shown to have concurred in the stopping of their work. He cited
West V. Blakeway, 2 Man. k 6. 729 (£. C. L. R. vol. 40), Phillpotts
V. Evans, 5 M. & W. 475,t and Ripley v. M'Clure, 4 Exch. 345.t(i)
And he contended that the d'amages were excessive, inasmuch as the
verdict was given in respect of all the chairs, whereas some had been
undelivered on the appointed days, before the final stoppage, and with-
out any compulsion upon the plaintiffs not to deliver them. A rule nisi
was granted.

Humfrey and Willmore now showed cause.(c) — The plaintiffs proved
that^ they were ready and willing to deliver all the chairs, if the defend-
ants had not prevented them. There could be no obligation to tender
them, after the Company had said that they would not be received.
The defendants will be obliged to contend that their contract could not
be broken but by an order under seal. [Lord Campbell, C. J. — That
it could not be altered but under seal. Pattbson, J. — The argument

(a) The specifloatipn required that the nnder side of the ehuir should be "perfectly flat mnd
OTen on the surface."

(6) See M'Clore o. lUpley, to Bxeh. Ch., 5 Kzeb. 140.f

(e; Before Lord Campbell, C. J., Pattesou, Coleridge, and Brie, Ji.

*186]

17 ADOLPHUS & ELLIS. N. 8. 186

» »

will apply only to the dischargiDg.] The plaintiffs had no means of
obtaining a discharge under seal. Discharge of the plaintiffs, or refusal
to fulfil their own contract, are, for the present purpose, the same thing.
To say that a seal was necessary to the discharge is to extend the law
as to the making of contracts by a Company to the breaking of them,
and to require a formal contract for both. But, further, the averment
put in issue here is that the defendants «< refused to accept" the resi-
due of the chairs, and *« prevented and discharged" plaintiffs from sup-
plying them. It is enough if the refusal and ^prevention be r4ciQ7
proved. They are an act in pais, equivalent to a discharge. ^
Otherwise the most formal tender of the chairs would not have entitled
the plaintiffs to sue, unless there had been an express discharge by the
Company, and that regularly accepted by the plaintiffs. Refusal, and
the continuance of it, were the questions which went to the jury in
Bipley v. M'Clure, 4 Exch. 845 ;t and it was held that their finding
for the plaintiff entitled him to recover in an action of assumpsit for
discharging him from delivery of a cargo and refusing to purchase it
according to contract. [Lord Campbell, C. J. — You say that it is not
necessary here to show that the contract was varied or put an end to :
that the act of the defendants was a. flat breach of the contract, which
dispensed with your performance.] That is so. The ability of the
plaintiffs, if they had not been prevented, was amply proved. (The
plaintiffs' counsel commented upon the cases of West v. Blakeway, 2
M. k 0. 729 (E. C. L. R. vol. 40), and Phillpotts v. Evans, 5 M. & W.
475,t cited in moving for the rule ; but these are so fully discussed in
the judgment of the Court, who took the same view of them, that a
farther notice of this part of the argument is unneeessary.) As to the
specific act of prevention here, the engineer was a person whose pro*
oeeding might bind the Company, if he had their authority ; and this
£act was affirmed by the jury.. • The Company's acts must be done
through some individual agent : and the engineer, by refusing to certify
for the purpose of warranting payment, might, individually, stop the
further delivery. [Lord CampbBll, C. J. — The Company never inter-
fered ; and that seems to have justified the jury in finding that his act
was theirs.] Glover v, London & North Western Railway *Com- p^- „«
pany, 5 Exch. 66,t is an authority for the plaintiffs on this point. ^ «
Afl to damages, the learned J^udge did not dictate to the jury any par-
ticular mode of estimating them, but only laid down as matter of law
that the plaintiffs should be put into the same situation as if the con-
tract had been fulfilled ; which was correct.

Macaulay and DenucUj contrd,. — The plaintiffs, in order to recover,
were bound to prove a delivery or something equivalent ; the equivalent
relied upon was a discharge or prevention, which appear to have been
treated at the trial as the same thing. That a mere* dispensation by
parol would not suffice is clear from West v. Blakeway : and the only

VOL. XVII. — 14

138 CORT V. AMBEROATE. Ac., RAILWAY CO. T. T. 1851.

modes in which the plaintiffs could exonerate themselves from the con-
dition precedent were, either a competent dispensation or an actual
prevention by the covenantee. << Discharge/' in pleading, is taken to
mean a discharge legally operative ; that is, where the obligation is by
deed, a discbarge by deed ; Brymer v. Thames Haven Dock k Railway
Company, 2 Exch. 549.t What amounts to legal prevention is shown in
Cpm. Dig. Condition^ (L 6). << So the performance of a condition shaP
be excused by the obstruction of the obligee : as if a condition be to
build an house ; and he, or another by his order, hinders his coming upon
the land." Other instances are then given ; and it is added : (^ Bat it
ought to be an obstruction which disables the performance." What woold
or would not amount to a disability appears by (M 5) of the same title.
*1^*Q1 C^^'*^ Campbell, C. J. — The examples *there regard condi-
-* tions to enfeoff; I think they are not much to the present pur-
pose.] There must be a prevention. [Lord Campbbll, C. J. — Of what ?
CoLERiDQH, J. — Suppose a man said, «< If you come for such a purpose,
I will blow your brains out." That would be no physical prevention.
Lord Campbell, C. J. — Such a threat might be used ten days before
the act was to be done.] Its effect must be judged of by a jury. In
West V. Blakeway, 2 Man. k G. 762 (E. C. L. R. vol. 40), Tindal, C.
J., thought that, if the plea had disclosed << an act which the lessor had
done, or which he had compelled to be done," it would have been good
Bosanquet, J., said : « I agree that if the covenantee prevent the per-
formance of the covenant by an act of his own, his right of action for
the breach of that covenant is destroyed. But the act, to constitute
such a defence, must be the immediate act of the covenantee." And
Coltman, J., said that the fallacy in the defendant's argument was its
assuming (< that there was an act done by the lessor by which the lessee
was prevented from performing his covenant." Reference is there
made to the Case of the Master of St. Catherine's,(a) where the breach
of condition by the lessee was caused by an actual ouster and force on
the part of the lessor, who afterwards sought to take advantage of the
condition ; but it clearly was considered that nothing short of such
force would be an excuse. No direct authorities as to prevention have
been found ; but it is evident that there ought to be a prevention in
fac^ when the party alleging it was ready, and did all that lay in him,
to perform his part of the contract. [Erlb, J. — There is prevention
by a series of acts. Coleridge, J. — You would not admit such a
waiver as was allowed in Ripley *». M'Clure, 4 Exch. 346.t Lord

♦140].

Campbell, C. J. — According to your argument, even a notice

under the common seal of the Company to send no more chairs would
have been insufficient.] That would be a discharge, not a prevention ;
and the proper mode of doing such act is pointed out by the Companies

(a) Cited in Franoei'i Caae, 8 Rep. 01 b.

17 ADOLPHUS & ELLIS. N. S. 140

Olaoses Consolidation Act, 1845, 8 t 9 Vict, c. 16.((i) In Ripley v.

M*Glare, the point of time at which the breach of contract took effect

was held to be the time when the ship arrived at Belfast, and the

cargo was to be delivered and accepted, no intermediate act remaining

to be done. A previous refusal, unless the evidence had shown that it

continued down to that time, would have been unimportant. The same

coDcIusion may be drawn from Phillpotts v. Evans, 5 M. & W. 475.t

[Lord Campbkll, C. J. — According to your view, if the party who

contracted to purchase were to say, «< I am insolvent, and your finishing

the article will be of no use," the vendor could not recover unless he

finished and tendered it. Erle, J. — Suppose the contract was that

plaintiff should send a ship ta a certain port for a cargo, and defendant

should there load one on board; but defendant wrote word that he

could not furnish a cargo: must the ship be sent, to return empty?

Lord Campbell, C. J. — If it were law, it could not be sen8e.(()] In

Planch^ V. Colburn, 8 Bing. 14 (E. C. L. R. voL 21), the defendants

had engaged the- plaintiff to vfrite a work for publication, but abandoned

the publication when the work was partly completed ; and the Court of

^Common Pleas held that he might recover for so much as he r^^A^

had done, without having tendered the work. There it must ^

have been considered that the contract was rescinded, and that the

plaintiff might recover upon it for so much as he had been allowed to

execute : upon the facts here, a rescinding cannot bo assumed, and the

pls^intiffs, in order to recover, must have carried out the contract.

[CoLSRiDOB, J. — Could the contract be rescinded without consent of

both parties ? The judgment of Bosanquet, J., in Planch^ v. Colburn,(c)

is against your view. Erlb, J. — Ttfe Court there do not say that the

contract was rescinded.] {Euwfrey referred to the observations on

this case in Goodman v. Pocock, 15 Q. B. 576, 582 (E. C. L. R. voL

69) ; and Erls, J., cited Elderton v. Emmens, 6 Com. B. in Exch. Gh.

160.(d))

The learned Judge in the present case told the jury to assume that
the engineer's acts were authorized by the Company ; but there was no
evidence of their sanction. [Colbridqb, J. — ^Not by orders under seal ;
but there was other conduct that showed it.] (The discussion as to
the evidence, and the words used by the learned Judge, is on^tted.
Lord Campbell, C. J., said : It was not a direction in point of law ;
and I should have advised the jury so myself.)

In considering what a corporation may authorize without seal, refer-
ence must be had to the nature and objects of the incorporation;

(a) See leeL 02, et leq.

(6) Cook V. JeDoingfl, 7 T. R. 881, wu here eited; bat Lord CftmpbeU, C. J., said: That hai
nothing to do with thie cue.

(e) 8 Btng. 14. See S. C, 1 Mo. k Scott, 51 (E. C. L. R. toI. 28).

(<f) RoTening the jodgment of 0. P. in Blderton «. Emmens, 4 Com. B. 479 (E. C. L. R. toL
M). Judgment of Sxch. Ch. aflnnod ia Dom. Proo. ; Bmmeiif e. Eldertop, 4 Ho. L. Ca. 624b

141 CORT V. AMBEROATE, Ac., RAILWAY CO. T. T. 1861.

that principle was acted npon in Beverley v. The Lincoln Oas Light k
*1421 ^^^^ Company, 6 A. & E. 829 (E. C. L. R. vol. 83), ♦Mayor of
-' Ludlow V. Charlton, 6 M. & W. 815,t and Paine v. Strand Union,
8 Q. B. 326 (E. C. L. R. vol. 55) ; and Ridley v. Plymoath Grinding
k Baking Company, 2 Szch. 711,t ahowa how atrictly the Coarts will
examine the authority of individuals to bind a joint stock corporation
instituted for the purposes of a special Act of Parliament. [Lord
Campbbll, C. J.^— It appears here that, according to the course of the
Company's business, it was left to the engineer to manage the affairs in
question ; and that in those they were represented by him.] Cox v»
The Midland Counties Railway Company, 8 Exch. 268,t is another
authority for the defendants on this point. [Lord Campbell, C. J. —
There never was a case reported which admitted of less doubt.]

As to the damages. Until the first actual stoppage, in January^
1848, the plaintiffs might have delivered the chairs on the days specified;
if any remained on hand by reason of their omission to do so, it was
their own fault : and damages ought not to have been awarded to them
for loss of profit on the whole amount finally^ undelivered, but only on
that which they were prevented by express prohibition from delivering
on the stated days. (They also contended that, on the amount for
which damages might be claimed consistently with this objection, the
assessment was not justified by the evidence.) Our, adv. vuU.

Lord Campbell, C. J., on a later day of the term (June 4th), deli-
vered the judgment of the Court.

We are of opinion that the verdict found for the plaintiffs ought not
to be disturbed. As to the supposed misdirection : the learned Judge
at the trial did not ^direct the jury that in point of law the
engineer had authority to bind the Company, but only left it to
the jury to consider whether, in point pf fact, the Company by their
mode of dealing had authorised and sanctioned his acts. His Lordship
intimated that he thought the evidence was strong to show that they
had done so, but that it was for the jury to give the evidence its due
weight. The objection of misdirection therefore fails.

N^xt we^ have to consider whether the plaintiffs were entitled to a
verdict on the issue whether they were ready and willing to execute and
perform the said contract according to the said conditions and stipula^
tions, in manner and form, &c. ; and on the issue whether the defend-
ants did refuse to accept or receive the residue of the chairs, or prevent
or discharge the plaintiffs from supplying the said residue, and from
the further execution and performance of the said contract. It is not
denied that, if the defendants would have regularly accepted and paid
for the chairs, the plaintiffs would have gone on regularly making and
delivering them according to the contract : the objection is that, al-
though the plaintiffs were desirous that the contract should be fully
performed, yet, after receiving the notice that the Company did not

>148]

17 A.D0LPHU8 & ELLIS. N. 8. 148

wiBh to have any more chairs, and would not accept any more, they
oeaaed to make any more, insomuch that the residue which the Com*
pany are alleged to have refused to accept never were made. [The do*
fendants contend that, as the plaintiflfs did not make and tender the
residue of the chairs, they cannot be said to have been ready and lull-
ing to perform the contract; that the defendants cannot be charged
with a breach of it; that, after the notice from the defendants, whi^
in truth amounted to a declaration thiit *they had broken and r«^^4
thenceforward renounced the contract, the plaintiffs, if they *-
wished to have any redress, were bound to buy the requisite quantity
of the peculiar sort of iron suited for these railway chairs, to make the
whole of them according to the pattern, with the name of the Company
upon them, and to bring them to the appointed place? of delivery, and
tender them to the defendants, who, from insolvency, had abandoned
the completion of the line for which the chairs were intended, desiring
that no more chairs might be made, and declaring, in effect, that no
more should be accepted or paid for. We are of opinion, however, that
the jury were fully justified upon the evidence in finding that the plain-
tiffs were ready and willing to perform the contract, although they
never made and tendered the residue of the. chairs. In common sense
the meaning of such an averment of readiness and mllingnese must be
that the non-completion of the contract was not the fault of the plain-
tifi, and that they were disposed and able to complete it if it had not
been renounced by the defendants. What more can reasonably be re-
quired by the parties for whom the goods are to be manufactured ? If,
having accepted a part, they are unable to pay for the residue, and have
resolved not to accept them, no benefit can accrue to them from a use-
less waste of materials and labour, which might possibly enhance the
amount of damages to be awarded against them.

Upon the last issue, was there not evidence that the defendants
refused to accept the residue of the chairs ? If they had said, <« Make
no more for us, for we will have nothing to do with them," was not that
refusing to. accept or receive them according to the contract? But the
learned counsel for the ^defendants laid peculiar stress upon the r^Mkr
words <«nor did they prevent or discharge the plaintiffs from ^
supplying the said residue" of the chairs << and from the further execu-
tion and performance of the said contract." We consider the material
part of the allegation which the last plea traverses to be, that the de-
fendants refused to receive the residue of the chairs. But, assuming
that the whole must be proved, we think there is evidence to show that
the defendants did prevent and discharge the plaintifis from supplying
the residue of the chairs, and from the further execution of the con-
tract. It is contended that ** prevent'* here must mean an obetruetian
igf pkjfeieal faree ; and, in answer to a question from the Court, we
were told it would not be a preventing of the delivery of goods if the

145 CORT t^.'AMBERGATE, &o., RAILWAY CO. T. T. 1851.

purchaser were to write, in a letter to the person who onght to snpplj
them, <( Should you come to my honse to deliver them, I will hlow your
brains out." But may I not reasonably say that I was prevented from
completing a contract by being desired not to complete it ? Are there
no* means of preventing an act from being done, except physical force'
or brute violence 7 Again, we are told there can be no << discharge* by
Incorporation unless by deed under the corporate seal. Of a discharge
iu one sense of the word this is true. A discharge is sometimes used
as equivalent to a releascy which must be under seal ; Brymer v. Thames
Haven Dock h Railway Company, 2 Exch. 549.t But we conceive
that, in the allegation traversed by the last plea, discharge only means,
*lif)l ^^^^ preventy that the act of the defendants was the cause *of the

-* residue of the chairs not being delivered, and of the contract not
being further executed or performed. Taking the language employed
in its natural and reasonable sense, there was abundant evidence to
support the finding of the last issue for the plaintiffs.

It is averred, however, that there are express authorities to show
that there could he no readiness and willingness to perform the con-
tract unless all the chairs were finished and tendered ; that to present
must be by positive physical obstruction, and that there can be no c7£»-
charging unless by instrument under seal. The first case relied upon
was West v. Blakeway, 2 Man, &; 6. 729 (E. C. L. R. vol. 40), in which,
an action being brought by lessor against lessee on a covenant to yield
up at the expiration of the term all erections and improvements set up
or made during the term, assigning for breach the removal of the sashes
and framework of a greenhouse erected during the term, it was held to
be a bad plea that there was a subsequent parol agreement between the
parties that if the lessee would erect a greenhouse he should be at
liberty to pull it down and remove it. But this merely illustrates the
well known rule that a covenant under seal cannot be varied by parol :
Unumquodque ligamen dissolvitur eodem ligamine quo ligatur. It has
no application to* a case where the covenantor is prevented from per-
forming the covenant by the covenantee. In 1 Roll. Ab. 458, and in
Slprin. Abr. 242, 8, tit. Condition (M. c), will be found various in-
stances of a covenant being discharged without deed by the act of the
covenantee.

The next case relied on by the defendants' counsel was Phillpotts v.
^^ ..^ Evans, 5 M. & W. 475. f That was an action of ^assumpsit for

-* not accepting a quantity of wheat sold early in January, 1839,
by the plaintiffs at Gloucester, « to be delivered at Birmingham as soon
as vessels could be obtained for the carriage thereof.'' On the 26th of
January the defendant gave notice to the plaintiffs that he would not
accept the wheat if it were delivered. It was then on its way by canal
to Birmingham ; and, on its arrival there, the defendant was required
to accept ity but he refused to do so. The only question at the trial

17 AD0LPHD8 & ELLIS. N. 8. 147

was as to the time with respect to which the damages were to be calcu-
lated. The market having continued to fall from the day of the con*
tract till the bringing of the action, the defendant sought to take ad-
vantage of his own wrong, and to calculate the damages according to
the price in the market on the 26th January when he gave notice that
he intended to break the bargain ; but it was very properly held that
the plaintiffs were entitled to damages according to the market price
when the wheat was tendered to the defendant for acceptance. The
Court cannot be considered as having decided that, if the notice had
been "received by the plaintiffs before the wheat was sent off from
Gloucester, the plaintiffs might not at their pleasure have treated it as
a breach of the contract and commenced an action against the defend-
ant for not accepting it, without tendering it to him at Birmingham.

The most recent case cited by the defendants' counsel was Ripley v.
M'Clure, 4 Exch. S45.t This case is very complicated in its circum^
stances ; but the second point decided in it is the only one applicable
to the question which we have to consider. There being an executory
contract, ^whereby the plaintiff agreed to sell and the defendant r4ti4o
to buy, on arrival, certain goods, to be delivered at Belfast at a ^
certain price, payable on delivery, it was held that a refusal by the
defendant before the arrival of the cargo to perform the contract was
not of itself necessarily a breach of it, but that such refusal, unretracted
down to and inclusive of the time when the defendant was bound to
receive the cargo, was evidence of a continuing refusal and a waiver of
the condition precedent of delivery, so as to render the defendant liable
for the breach of contract. But, in the case at bar, the refusal never
was retracted ; and therefore there was a continuing breach down to the
time when this action was commenced.

Upon the whole, we think we are justified) on principle and without
trenching on any former decision, in holding that, when there is an
executory contract for the manufacturing and supply of goods from
time to time, to be paid for after delivery, if the purchaser, having
accepted and paid for a portion of the goods contracted for, gives notice
to the vendor not to manufacture any more as he has no occasion ^r
them and will not accept or pay for them, the vendor having been
desirous and able to complete the contract, he may, without manufactur-
ing and tendering the rest of the goods, maintain an action against the
purchaser for breach of contract ; and that he is entitled to a verdict on
pleas traversing allegations that he was ready and willing to perform
the contract, that the defendant refused to accept the residue of the
goods, and that he prevented and discharged the plaintiff from manu-^
fiacturing and delivering them.

We are likewise of opinion that, in this case, the damages are not
excessive, as the jury were justified *in taking into their calcula- r^c^i ^g
tioQ all the chairs which remained to be deli^ered| and which the ^

149 CORT V, AMBBRGATE, Ac., RAILWAY CO. T. T. 1851.

defendants refused to accept. They were all included in the declara.
tion and in the issues joined : the time mentioned in the proposal for
the delivery of some of them had arrived before the notice was given;
but the time of delivery was not of the essence of the contract ; and the
obligation was still incumbent upon the defendants to accept the whole
of the residue.

The rule must therefore be discharged. Rule discharged.(a)

(a) S«e Hoohater v. Do la Toar, 2 S. A B. 678 (B. C. L. R. toI 75).

As to the effect of prevention gene- 311 ; Risinger v, Cheney, 2 Oilman,

rally in exercising performance or ten- 84; Little v, Mercer^ 9 Missonriy 218;

der, see Costigan v. Mohawk Railroad Grove v. Donaldson, 15 Penn. State

Company, 2 Denio, 609; Howard v. Rep. 128; Kugler v. Wiseman, 20

Wilmington Railroad Company, 1 Gill, Ohio, 361.

The QUEEN v. The Guardians of the Poor of ST. MARTINS IN
THE FIELDS. May 29.

Qao warranto lies for an offloe, thoagh not immediately derived from the Crown, if it be lo medi*
ately (as where CommiBStoners are empowered by Act of parliament to direct that such offiee
be created) ; if it be an independent sabetantive office ; and if it be of a public nature.

In a parish governed, as to the Poor law, by Guardians appointed under order of the I^or Lav
Commissioners, information in the nature of qno warranto lies for the office of Clerk to each
Gnardians, elected by the Guardians under an order of the Commissioners, pursuant to staL 4 A
5 W. 4, c. 76, s. 46, prescribing the duties ; the tenure being for life and during sanity, or untii
resignation, or removal by the Commissioners : and the duties being : 1. To attend all moei>
ings of the Board of Guardians and to lieep their minutes : 2. To lieep, check, and examine all
accounts, and other documents relating to the business of the Guardians, and product them tn

• the auditor. 3. To peruse and conduct the correspondence of the Guardians, and preserve tk«
tame, and all orders of the Commissioners, and make all neeessary copies of letters, Ac. 4. To
prepare all written contracts and agreements to be entered into with the Guardians, and bonds,
Ac, to be given by parish officers, and to see them duly executed. 5. To summon extraordU
nary meeiings on requisition, and to issue all notices to the Guardians. 6. To countersign all
legal orders of the Guardians on overseers for payment of money, and all legal orders of tlio
Guardians upon the treasurer. 7. To ascertain and enter the balance of account with tb«
treasurer in the minute book before every ordinary meeting. 8. To lay the non-settled and
gpion-rosident poor accounts quarterly before the Guardians, and to take their directions as to
settlement of accounts with other parishes or unions. 9. To transmit periodical statements oC
relief had by non-settled poor to the parishes or unions on account of which it was given. 10
To communicate to the persons engaged in the relief of the poor within the parish all orders
and directions of the Commisfioners or Guardians, give instructions for the prompt and correoi
execution of such orders, and report defaults. 11. To conduct all applications by the Guar-
dians to justices in special, petty or general sessions, and, if an attorney, execute the legal
business of the parish or Guardians, with certain exceptions, making no charge except for
disbursements. 12. To prepare and transmit all reports, answers, or returns, required by tlio
Commissioners, to questions relative to the administration of the Poor law in the parish. lA
f To conduct duly and impartially, and in strict conformity with the regulations in force at tbo
time, the annuiii or any other election of Guardians. 14. To observe and execute all lawfvl
orders and directions of the Guardians applicable to the offiee.

A BULB nisi was obtained last term for a mandamus calling upon the
aboYd named Guardians ii elect a Clerk*

17 ADOLPHUS & ELLIS. N. 8. 160

*It appeared, on aflSdavit in support of the rale, that the r^^^rn

administration of the Poor laws in St. Martin's parish, and the ^

gOTernment of the workhouse, were placed in the hands of twenty-four

Oaardians by an order of the Poor Law Commissioners, under stat. 4

ft 5 W. 4, c. 76, dated 29th April, 1835. And that the Commissioners,

by a subsequent order (30th May, 1835), directed that the Guardians

should appoint a fit and proper person to be Clerk to the Board of

Guardians ; also a treasurer and a relieving oflBcer ; and that, when any

person so appointed should die or resign or be removed, the Board of

Guardians should, as soon afterwards as conveniently might be, proceed

in like manner to a new appointment ; and that the salaries of sucli

Clerk, treasurer, or relieving oflScers should be submitted to the Com*

missioners from time to time for their approval. By the same order it

was directed that such Clerk should (amongst other things) observe and

fulfil all lawful orders and directions of the Board of Guardians, and

likewise the rules, orders, and regulations of the Commissioners. A

Clerk was accordingly elected (June, 1885) ; and his salary was fixed at

200{. a year. In a report, presented to the Board, May 23d, 1836, and

adopted, his duties were described as follows. ««The duties of this

office shall be those laid down by the Poor Law Commissioners : also to

assist the churchwardens and overseers in their duties : his attendance

at the workhouse shall be from," &c. (fixing hours) : the salary of 2002.

per annum, attached *to this office, to include all law charges r^n^i-^

except money out of pocket. The Commissioners (in July, 1836) ^

approved of the report, «« and of the direction that the Clerk should

assist the churchwardens and overseers in their duties, so far as those

duties related to matters connected with Poor Law administration."

The Commissioners, by a further order, of December 8th, 1847,
addressed to the Guardians of St. Martin's and seventeen other parishes,
directed (Article 154) that the officers appointed to or holding certain
offices enumerated in the order,(a) including that of Clerk, should
respectively perform such duties as might be required of them by the
rules and regulations of the<]!ommi88ionei*s in force at the time, together
with all such other duties, conformable with the nature of their respecli
ive offices, as the Guardians might lawfully require them to perform.
Also (by Art. 186), that <« Every officer appointed to or holding any
office under this order, other iHiti a medical officer, shall continue to
hold the same until he die, or rc.-igii, or be removed by the Commission-
ers, or be proved to their satisfaction to be insane*" And (by Art. 201)
that

««The following shall be the duties of the clerk :

No. 1. To attend all meetings of the Board of Guardians, and to

(a) Tbey were m follows : Clerk to the GaardiAot, Treuarer of the parifh, CbapUin, Medieal
fur the vorkboase, District medical ofleer. Muter of the Workhonee, Matron of the Work-
Schoolmaster, Schoolmietreie, Porter, Nurse, RelieTing offleer, Superinteodent of out-door

TOL. XVII. — 15 K 2

151 REGINA t;. GUARDIANS OF ST. MARTINIS. T. T; 1851.

keep punctually minutes of the proceedings at every meeting ; to enter
the said minutes in a book, and to submit the same so entered to the
*1 cQi presiding chairman at the succeeding ^meeting for his signature.

'^-' No. 2. To keep, check, and examine all accounts, books of
accounts, minutes, books, and other documents, as required of him by
the regulations of the Commissioners, or relating to the business of the
Guardians ; and from time to time to produce all such books and docu-
ments, together with the necessary vouchers, and the bonds of any
officers, with any certificates relating thereto which may be in his cos-
tody, to the auditor of the parish, at the place of audit and at the time
and in such manner as may be required by the regulations of the Com-
missioners. No. S. To peruse and conduct the correspondence of the
Guardians according to their directions, and to preserve the same, u
well as all orders of the Commissioners, and letters received, together
with copies of all letters sent, and all letters, books, papers, and doca-
ment^ belonging to the parish, or intrusted to him by the Guardians,
and to make all necessary copies thereof. No. 4. To prepare all written
contracts and agreements to be entered into by any parties with the
Guardians, and to see that the same are duly executed ; and to prepare
all bonds and other securities to be given by any of the officers of the
parish, and to see that the same are duly executed by such officers and
their sureties. No. 5. To receive all requisitions of Guardians for
extraordinary meetings, and to summon such meetings accordingly;
and to make, sign, and send all notices required to be giveii to the
Guardians by this or any other order of the Commissioners. No. 6.
To countersign all orders legally made by the Guardians en overseers
for the payment of money, and all orders legally drawn by the Guar-
dians upon the treasurer. No. 7. To ascertain, before every ordinary
^^ -o-i meeting of the Board, *the balance due to or from the parish in

-* account with the treasurer, and to enter the same in a minute
book. No. 8. At the first meeting of the Guardians in each quarter,
to lay before the Guardians, or some committee appointed by them, the
non-settled Poor account, and the non-resident Poor account, posted in
Ilis ledger to the end of the preceding quarter, and to take the directions
of the Guardians respecting the remittance of checks or post-office
orders to the Guardians of any anion, or other parish, or the trans-
mission of accounts due from unions or other parishes, and requests for
payments. No. 9. Within fourteen days from the close of each quarter^
to transmit by post all accounts of relief administered in the course of
the preceding quarter to non-settled poor to the Guardians of the anions
and other parishes on account of which such relief was given ; and to
state in every account so transmitted the^names and classes of the seve-
ral paupers to whom the relief in question has been administered. No.
10. To communicate to the several officers and persons, engaged in the
administration of relief within the parish, all orders and directions of

[♦154

17 ADOLPHUS k ELLIS. N. 8. 1.^8

the Commissioners, or of the Oaardians, and, so far as may be, to giTe
the instructions requisite for the prompt and correct execution of all
such orders and directions, and to report to the Guardians any neglect
or failare therein which may come to his knowledge. No. 11. To con-
duct all applications by or on behalf of the Guardians to any justice or
jastices at their special, petty, or general sessions, and, if he be an
attorney or solicitor, to perform and execute all legal business connected
with the parish, or in which the Guardians shall be engaged, except
prosecutiona at the ♦assizes, actions at law, suits in equity, or
parliamentary busings, without charge for anything beyond dis-
bursements. No. 12. To prepare and transmit all reports, answera, ot
returns, as to any question or matter connected with or relating to the
administration of the laws for the relief of the poor in the parish, or
to any other business of the parish, which are required by the regula-
. tions of the Commissioners, or which the Commissioners, or any Assist-
ant commissioner, may lawfully require from him. No. 18. To conduct
duly and impartially, and in strict conformity with the regulations in
force at the time, the annual or any other election of Guardians. No.
14. To observe and execute all lawful orders and directions of the
Guardians applicable to his office."

On February 24th, 1851, the Clerk to the Guardians having resigned,
a meeting of the Board was held, at which Charles Robertson Griffiths
was elected Clerk, the offices of Clerk and assistant having been con-
solidated by resolution of the Board on a former day. The election
was approved by the Poor Law Commissioners. Some of the Guar-
dians, however, objected 'that the resolution to consolidate had been
irregularly passed ; that Griffiths was not qualified for the office ; and
that the vote was not taken according to law : and on these grounds
the election was impeached, and application made for a mandamus.

Sir F. KeUy and Pcuhley now showed cause. — [Lord Campbell, C.
J. — ^An'answer to this motion seems to be that, according to Darley v.
The Queen, 12 CI. k Fin. 620, a Quo Warranto information would lie
for the office.] The *House of Lords there consulted the r^^-it^
Judges ; and they were unanimously of opinion that a Quo war- '-
ranto information lies «<for usurping any office, whether created by
charter alone, or by the Crown, with the consent of Parliament, pro-
vided the office be of a public nature, and a substantive office, not
merely the function or employment of a deputy or servant held at the
will and pleasure of others. "(a) And. the House held that such in-
formation lay for the office of Treasurer of the county of the City of
Dublin. The office here in question emanates from the Crown, not
immediately, but through the Commissioners, acting under stat. 4 & 5
W. 4, c. 76, 8. 46. [Lord Campbell, C. J.-^What is done by the
donee of the power is supposed to be done by the donor.] The office

(a) 12 CL a Fin. Ml, 2.

156 REGINA v. GUARDIANS OF ST. MARTIN'S. T. T. 1861.

is of a public natare, as appears by the enumeration of duties imposed
by the Commissioners, whose order in this respect is equiraleDt to an
express provision in the statute ; and it is a substantive offiev. [Lord
Campbell, C. J. — What is the tenure ?] It is held during life, and
sanity, or until resignation or removal by the Commissioners. [Lord
Campbell, C. J. — They may remove him at any tjme ; but the appoint-
ment is equivalent to an appointment quamdiu se bene gesserit.] In
Darley v. The Queen, 12 CI. k Fin. 542, the Judges, when inqairing
whether the office was public, noticed its functions as to the assess-
ment, receipt, and appropriation of moneys on th^ublic account. The
Clerk here has similiar functions as to pecuniary matters. If he niia-
applied moneys, he would be responsible as a public servant. His
functions are recognised by stats. 5 & 6 Vict. c. 57, s. 17, and 7 ft 8
*1W} ^^^^' ^' ^^^» ^- ^^* ^'^ ^admission, on the subject of relief to

-" a pauper, if not rebutted, binds a parish in the Union ; Begins
V. Wigan, 14 Q. B. 287 (E. C. L. R. vol. 68). [Pattbson, J.— In Rex
9. Hall, 1 B. & C. 123, 237 (E. C. L. R. vol. 8), which related to the
office of Register and Clerk of the Court of Requests at Bristol, no
question seems to have been raised as to the remedy by Quo warranto
until the taxation of costs, when the defendant was held not entitled
to them under stat. 9 Ann. c. 20, s. 5.] There have been conflicting
decisions as to the remedy in cases of this kind : in a case cited in Bex
V. Beedle, 3 A. & £. 467, 476 (E. C. L. R. vol. 30), a Quo warranto
appears to have been granted for the office of guardian of the poor ;
and in the principal case that authority was acted upon. It was over-
ruled in the subsequent case. Be Aston Union, 6 A. k £. 784 (E. C.
L. R. vol. 33), but must be considered as re-established by Darley v.
The Queen, 12 CI. k Fin. 520. [Goleridob, J.— If Quo warranto
does not lie for the office of Guardian it may yet lie for that of
Clerk.]

Sir F. Theiiger and BramweJl, contri, were then called upon by the
Court as to this point. — If the Court does not clearly see that this is
an office for which Quo warranto lies, a mandamus ought to be granted;
Rex V. The Rector, &c., of Birmingham, 7 A. & E. 254 (E. C. L. B.
Tol. 34). [Pattbson, J.— "There we proceeded on the ground that there
was no other remedy, taking it for granted that Quo warranto did not
lie for the office of Churchwarden.] It is assumed here that the office
is a public one, emanating from the Crown, because created under an
Act of Parliament. But stat. 4 & 5 W. 4, c. 76, s. 46, only enables the
Commissioners << as and when they shall see fit" to direct the overseers
*1 ^71 *^^ Guardians <« to appoint such paid officers" «« as the said Com-

^ missioners shall think necessary," for carrying the Act into exe-
ontion. That is not a direct creation of the office. No such oflice as
that of Clerk to the Guardians might ever have been created. And,
if the argument could prevail, Quo warranto would lie for every office

17 ADOLPHUS & ELLIS. N. S. 157

with pay which the GuardiatiB might institute under order of the Com
missioners : for example, that of Master of the workhouse, which in
fact is one of those mentioned in the order of 1847. [Patteson, J. —
Have you authority for saying that Quo warranto would not lie for
that office?] It is not of a public nature; nor is that of Clerk. If
this were within the rule laid down in Darley v. The Queen, 12 Gl. &
Fin. 520, the offices of nurse and matron would be so. [Lord Gamp-
bell, C. J. — It may be said that the duties of such offices are menial,
and not public. The office in question is very different in its functions.
It is more like that •f a treasurer.] The Glerk is but servant to the
Gnardians in respect of a particular class of duties'. As to the employ-
ment being public, a parish is not in all its transactions a public body,
as appears from Rex v. Edmonton, 1 M. & Rob. 24. The functions of
the Guardians themselves are as public and important as those of their
Clerk ; yet Quo warranto does not lie for the office of Guardian ; Re
Aston Union, Rex v. Ramsden, 3 A. & E. 456 (E. G. L. R. vol. 30).
[CoLBRiDQE, J. — The Guardians are elected by the rate-payers. Pat-
teson, J. — It is suggested by Tindal, G. J., in Darley v. The Queen,
that in the cased of overseers, and in others analogous to them, Quo
warranto may have been deemed not to lie because the offices were tem-
porary ; but I can say that this *was not our ground of decision
in the cases last cited. The office of a Mayor is temporary. It
certainly was my opinion, and that of Lord Tenterden and Mr. Justice
Taanton, and we uniformly acted upon it, that Quo warranto was not
the remedy unless there were an usurpation actually upon the Grown.
That, however, seems overruled by Darley v. The Queen.] It is now
decided that the remedy extends to offices of a public nature. [Lotd
Campbell, C. J. — Unfortunately the line of demarcation there is more
doubtful.] It is very difficult to define what is an office of a pnblie
nature. [Lord Campbell, G. J. — Whether it was on behalf of one
parish or several united, would not, I should think, make any differ-
ence.] The office may be deemed public if connected with the adminis-
tration of justice. [Patteson, J. — That might be a ground of dia-
tinction in Rex v. Hall, 1 B. & G. 128, 237 (E. C. L. R. vol. 8).] The
same remark may apply to some offices in the new County Courts.
Quo warranto does not lie for the office of churchwarden ; Rex v. Daw
beny, 2 Stra. 1196; (a) nor for that of Glerk to Commissioners of land
tax ; Rex v, Thatcher, 1 Dowl. k R. 426 ; though they are appointed
under a stat . ?, and their clerk has public duties. [Coleridge, J.,
mentioned Ilex v. Badcock, 6 East, 359.(6)] It is clear from Darley n.
The Queen, that an office, to be the subject of Quo warranto, must be

(a) 8. C, mora fuUj* 1 Bott P. L. 347, pi. 358, 6th ed., where it ie said : '< Bat Uie Coart
deoied die motion" (for Qoo warranto) ** a ehurchwarden not being mieh a pabUe officer againal
«ko« an information would lie ; for it was no nsarpa^ion npon the Crown, and thej might m
««ll apply foi an information againet a eonetablo^or overseer."

(^) Cited in Bex «. The Corporation of Bedford LereL

[*168

168 REGINA v. GUARDIANS OF ST. MARTIN'S. T. T. 1851.

of a Bubstantiye and independoDt character : here, if do clerk were
*1 ^Q1 ^PP^^^^^^' ^^^ Sanctions of that office must be performed b;
^ the Guardians themselves. He is only their assistant. [Lord
Campbell, C. J. — Does not he countersign documents 7] If there be
such an officer appointed, he does. The officers mentioned in the order
of December, 1847, need not all separately exist : two offices may be
consolidated. The duties of the Clerk are different according as be is
or is not an attorney. In Darley v. Tie Queen the office was substan-
tive and independent ; here it is neither. If this question be a doubtful
one, it may be fitly argued on demurrer to a return.

Lord Campbell, C. J. — This rule must be discharged, because man-
damus is not the proper course of proceeding. A person, other than
the prosecutor, has been elected ; the office is full ; therefore, accord-
ing to the established and convenient rule, if Quo warranto lies, the
proceeding ought to be in that form. Then, does Quo warranto lie for
the office of Clerk to the guardians ? If this question had arisen before
the decision in Darley v. The Queen, 12 CI. & Fin. 520, I should have
been perplexed by the contrariety of opinions in former cases : but that
lays down that the writ lies if the office be a substantive one and of a
public nature, held under a statute, though the assumption of it be not
otherwise an usurpation upon the Crown. It was formerly held in this
Court that, unless there were a direct usurpation upon the Crown, a
Quo warranto, or an information in the nature of it, would not lie ; bat
Darley v. The Queen alters that doctrine. Here the office is held as
under a statute, the Commissioners being empowered by statute to order
*1 R01 ^^ creation : *it has express duties prescribed ; and the tenure is
-* during good behaviour ; for, although, under the Commissioners'
order of December, 1847, the officer is to hold only until he «^be
removed, the removal must be on some grounds. Then, is the office of
a public nature ? We must look to the functions, and compare them
with those which were held to constitute such an office in Darley v. The
Queen. The House of Lords laid down no criterion in that case ; but
they held that the office there in question was public within the rule
they laid down : and I think the present office is not distingaisbable.
Whether the district for which it is exercised be a parish, or a hundred,
or several parishes in a Union, appears to me to form no ground of
distinction, if it be an office in which the public have an interest. I do
not regret coming to this decision, because the rights may be tried
more easily aud directly by means of an information than if a manda-
mus were granted.

Patteson, J. — Before the case of Darley v. The Queen I thought,
and Lord Tenterden and Mr. Justice Taunton were strongly of the same
opinion, that the remedy by Quo warranto was limited to the case where
there was an usurpation -simply upon the Crown : -my brother Parke

17 ADOLPHUS & ELLIS. N. 8. 160

differed ;(a) ^nd so did Lord DenniaD,(i) though on h subsequent occa-

8ion(c) he gave way to the authorities against granting the writ. And

there had been instances in which the writ had been granted against

persons acting as Commissioners under statutes. *But in Dar- r^^r*^

ley V. The Queen, I was satisfied upon the point, and agreed with *-

the other Judges. Our opinion then was that, whenever an office is

created mediately or immediately by the Grown, and is public, a Quo

warranto lies. How far that shakes the decisions in Re Aston Union

and other case^ cited by the Judges, I need not say ; certainly it does

shake them. Then, does this office come within the rule laid down ?

It is argued that, the Queen being party to the Act of parliament by

which it is created, the usurpation of it is an usurpation upon her.

And I think the office is created by the Crown, not immediately, but

mediately through the Act 4 & 5 W. 4, c. 76, which, by sect. 46,

intrusts to the Commissioners the power of causing paid officers to be

appointed, with very stringent directions as to the duties to be required.

If, in the present case, the officer had been, as was suggested, a mere

servant, the office would not have been, within the rule laid down, an

independent substantive office. But, although several of the duties are

such as would be performed by the Guardians themselves if there were

no Clerk, some are independent : and, the officer being appointed by

the Guardians under an order of the Commissioners, which they could

not give bat for the statute, I think the office is, so far, within the rule

in Barley v. The Queen. Then, is it a public office? We are told

that, if it were so, that of Master of the workhouse would be so too.

But we need not inquire further than into the case before us. For some

purposes it seems that a parish is not so far a public body as to have

the exemptions which such a body might claim; Governors of The

*Bri8tol Poor v. Wait, 6 A. & E. 1 (E. C. L. R. vol. 81). But j-^-gg

the question here b not whether the body for which the officer ^

acts is public ; it is whether his duties are of a public nature : and, as

the exercise of them materially affects a great body of persons, I think

.they are so. Therefore,. according to Parley v. The Queen, Quo war.

ranto lies, and consequently a mandamus ought not to be granted.

CoLERiDOB, J. — The decision in Darley v. The Queen not only broke
down the previously conceived opinion (though different ones had pre-
vailed), but established a rule, which is difficult of application. We
must however apply it as we can to each case that comes before us. I
had some doubt her^ ; but I think the question may be satisfactorily
answered under the two or three heads to which it reduces itself. First,
the nature of the office, and secondly its tenure, brings it within the

(a) Rax V. Bamsden, 3 A. A B. 468, 4M (B. C. L. R. toL 80). R«z v. Htnley, 3 A. A B. 48S
Bote (6).
(6) R«x V. Be«dle, 3 A. A E. 457.
(e) Re Atton Udiod, 6 A. A B. 784 (B. C L. R. toL 88).

*163]

162 REGINA v. GUARDIANS OP ST. MARTIN'S, T. T. 1851.

rule : the Clerk is removable by the GommiBsioDers ; bat that must be
on cause shown. Thirdly, as to the duties, it is difficult to define what
are of a public nature : but the Clerk here is, among other things, to
communicate to the persons engaged in the relief of the poor through-
out the parish all orders and directions of the Commissioners and Guar-
dians, and to give instructions for the execution ; to conduct the elections
of Guardians ; to be the channel of communication between the Board and
parish officers and the Commissioners upon questions which may arise
respecting the administration of the Poor law or other parochial busi-
ness ; and to manage the communications also between his board and
all other poor law boards or ^parochial bodies throughout the
kingdom. Therefore, without going farther, or deciding any-
thing as to other cases, which must be taken as they arise, I entirely
agree that, in this instance, the remedy by Quo warranto applies.

Erle J. — Three tests of the applicability of a Quo warranto are
given by Darley v. The Queen, 12 CI. & Fin. 520 : the source of the
office, the tenure, and the duties. The source here is a statute ; the
tenure, secure enough to satisfy the rule : as to the duties, no defini-
tion of public duties has been given ; all we can do is to follow such
guidance as we have from the last cited case. If the execution of an
office secures the proper distribution of a fund in which a body of the
public (the contributors to a parish rate) have an interest, the office
may be deemed public. I think the CIerk*s duties here are so, not
only on the grounds which have been stated, but inasmuch as he has the
countersigning of checks, a function which, if duly discharged, secures
the ratepayers generally, and the neglect of which may prejudice them.
I think no distinction arises from the parish being part of a union.

Lord Campbell, C. J. — I do not by any means say that Darley v.
The Queen applies to all the offices mentioned in the order of December
1847 (as, for instance, to that of a nurse, which is menial) ; though it
may be difficult to say where we should draw the line.

Rule di8charged.(a)

(a) See the next <

IT ASOLPHUS k ELLIS. N. S. 164

♦The QUEEN v. GRIFFITHS. June 16. [*164

B7 to order of the Poor Law Commissionera regulating the prooeedinga of Goardiana of th*
Poor in the pariah of M., the election of officera waa to be hy a minority of the Quardiana
present at a meeting of the Board. By atat 12 A 13 Vict c 103, a. 19, in eaae of an equality
of rotes upon any qaeetion at a meeting of Quardiana of any Union or pariah, the Chairman
has a " second or casting vote."

At an election of Clerk to the Quardiana of M. twenty-two Quardiana attended. On their
assembling, the chairman aaid he afaould not vote for any candidate, but merely preside at the
meetiog as chairman. He did ao, and took the votes, of which there were eleven for one
candidate and ten for another. The former waa declared elected, and entered upon the office.
On motion for a Quo warranto.

Held that the Chairman could not be conaidered aa having, for the purpoae of the election, with-
drawn; and that each election waa void, aa not having been determined by a minority of the
Quardiana preaent

After the decision in the Idst case, Sir F. Theaiger obtained a rale
nisi for a Quo warranto information against Griffiths for exercising the
office of Clerk to the Guardians.

It appeared on affidavit that the 88th article of the order of the Poor
Law Commissioners (referred to in the last case) dated 8th December,
1847, was a.s follows : «< Every question at any meeting consisting of
more than three Guardians shall be determined by a majority of the
votes of the Guardians present thereat, and voting on the question ;
and, when there shall be an equal number of votes on any question,
such question shall be deemed to have been lost." And that Article
155 was : " Every officer and assistant to be appointed under this order
shall be appointed by a majority of the Guardians present at a meeting
of the Board, consisting of more than three Guardians, or by three
Guardians if no more be present.^ The election of Griffiths took place
at a meeting of twenty-two Guardians. The Chairman of the Guardians
informed them, as soon as they were assembled, that he intended not
to vote for *any one of the candidates (there being four), amd r^^r^f-
should merely preside at the meeting as chairman. He did so, ^
and took the vote8.(a) There were eleven for Griffiths, ten for another
candidate, and none for either of the remaining two. Griffiths was de«
clared to be elected, and afterwards entered upon the office.

Sir F. Kelly ^ with whom was P<i9hleyy now showed cause. — It will be
objected that Griffiths was not elected, according to Article 155, by a
majority of the Guardians present, the Chairman having legally a vote,
and not having given it. If the Court is of that opinion, i#will be use-
less to go farther. But a question may be, whether ihe Chairman,
after bis der' . ation that he did not intend to vote, was not virtually
absent for the y irpose of the election. [Lord Oampbell, 0. J. — There
might perhaps have been a withdrawing of the Chairman, like the Lord
Chancellor going behind the woolsack, or the Speaker behind th'e chair :
but if he actually continued present, the case is different.]

(a) There waa an objection to the manner of taking the votea, which the reaolt of the preaent
taM makea it nnneeeaaary to atate.

VOL. XVII. — 16 L

165 RE6INA v. GRIFFITHS. T. T. 1851.

Sir F. Thesiger, contrd, referred to stat. 12 k 18 Vict. c. 108, a. 19,
which enacts: «That in the case of an equality of votes upon any
question at a meeting of the Guardians of any [Jnion or parish the pre>
siding Chairman at such meeting shall have a second or casting vote/'
*1661 ^^^^ Campbell, C. J. — We all think that in this *case the
-* Chairman was a Guardian present ; and therefore the eleren did
not constitute a majority.

Pattbson, Colbridoe, and Erle, Js., concurred.

The rule was made absolute ; it being understood that no infor-
mation should issue, and that Griffiths would resign within
a week, performing the duties of Clerk only until a new
election.

JOHN DOE V. THOMAS CHALLIS. May 30.

In an action of treipau for metne profits, it n'ppoared on the trial that the defendant bad been
let in to defend an ejectment, under a consent rule in which he was described as "mortgagee
and landlord ;" in other respects in the nsnal form ; and that the lessor of the pUdntiff reooyered
in that ejectment The defendant was mortgagee ; but it appeared that he never was in poa-
sesston, the profits being in fact taken by a receiver appointed bj the Court of Chancery.

Held that defendant was concluded by having become defendant in the ejectment under the
eonsent rule,. and could not allege on this trial that he was out of possession after the time cf
the service of the declaration.

Trespass for .mesne profits. Plea : Not Guilty. Issue thereon.

On the trial, before Erie, J., it appeared that Challis had been made
defendant in an ejectment for the premises, under a consent rule, and
that the lessor of the plaintiff had recovered in that action. The con*
sent rule ordered that « Thomas Challis, the mortgagee and landlord
of the tenants in possession of the premises in question in this cause,
be made defendant instead of the now defendant Richard Roe." It
was in all respects in the ordinary form of the consent rule made
where a landlord becomes defendant, except that Challis was described
*1R71 ^^i*<^uS^o^^ ^ «< mortgagee and landlord," and not ^merely as
^ <( landlord." It appeared that in fact he was mortgagee, but not
in possession, and that the rents were taken by a receiver appointed by
Chancery. 4?he amount taken by the receiver after the service of the
ejectment was shown ; and it appeared that the defendant had a por-
tion of these rents from the receiver, as one of the persons beneficially
interested. The lessor of the plaintiff only asked for a verdict for thia
latter amount. It was objected for the defendant that there was no
case against him to recover anything, as he was not in possession, either
by himself or his tenants. The learned Judge directed a verdict for the
plaintiff, with leave to move to enter a verdict for the defendant if the
judgment in ejectment, and the consent rule, were not conclusive.

[♦168.

17 ADOLPHUS & ELLIS. N. S. 167

Hoggtnn now moved accordingly. — The judgment and consent rnle
are evidence against the defendant ; hat they do not estop him from
showing the fact that he was never in possession. [Lord Campbell,
C. J. — Are you not averring against the record of the ejectment, on
the face of which the defendant is the ejector ? Colbridob, J., referred
to Doev. Wright, 10 A. k E. 768 (E. C. L. B. voL 87).] The defend-
ant in this case does not contradict the judgment ; he explains it by
showing that he came in to defend the ejectment for the purpose of try-
ing the title, not as being in possession. The consent rale may be
explained; Doe dem. Fellows v. Alford, 1 Dowl. & L. 470. [Lord
Oampbkll, C. J. — Does he not acknowledge, by commg in to defend
the action, that the person who is in possession and is served with the
ejectment is his ^tenant ? And is there any hardship in saying
that, as the lessor of the plaintiff is, in consequence of this,
deprived of his remedy against the tenant, the man who takes such a
step is bound by it ? Pattbson, J. — The person who causes another
to occapy, is himself liable for mesne profits ; Doe v. Harlow, 12 A. &
£. 40 (£. C. L. R. vol. 40).] In the present case he does not come in
as landlord, but as mortgagee and landlord; these words have been
introduced to show that he merely 'defends on the ground of title, and
does not conclusively admit possession. '

Lord Campbbll, G. J. — For the reasons thrown out in the coarse of
the argument, I think there should be no rule.

Pattbson, J. — Mr. Hoggins seems rather to rest his case on the word
«< mortgagee" introduced into the consent rule. But t}ie essence of the
rule is that he comes in as landlord ; it is only as landlord that he can
defend under stat. 11 G. 2, c. 19, s. 13.

CoLBRiDOB, J. — Justice requires that he who comes in as landlord to
defend an ejectment, on the ground that the person against whom it is
brought is his tenant, should beVin the position which the tenant would
have been in had he defended. Now the tenant himself could not, after
having entered into the consent rule, dispute his possession. Formerly
it was otherwise : the consent rule did not require the defendant to
admit possession ; and the lessor of the plaintiff was liable to be turned
round on that ground. But the form of the ^consent rule has ^^^ /»q
been altered ;(a) and this confession is binding on the tenant.(i) *-
It is clearly just that the person who comes in his place as landlord
should be in the same situation.

Erlb, J. — The question was whether this consent rule was binding
on the defendant as evidence of possession, so as to make him liable
for the mesne profits from the time of the service of declaration. I
think it cannot admit of reasonable doubt that it was. The lessor of
the plaintiff brought his ejectment against the tenant in possession.

(a) Se« Reg. Oen. Mieh. 1 G. 4, 4 B. A AM. 108 (B. 0. L. B. toL 6).
(fr) 8m I>odweU 9, GibtM, 2 Car. A P. 616 (B. C. L. B. toL U).

DOB V. CHALUS. T. T. 1851.

That tenaDt would have let him into possesaion ; but Cfaallis comes and
claims to prevent this. His claim is under a statute which allows this
proceeding by the landlord of the person in possession. His claim
therefore is as landlord : he obtains the benefit of defending the eject-
ment as landlord, and delays the plaintifi*: and, having thus asserted as
a fact that he was landlord of the person in possession, for his own
benefit, and to the prejudice of another, he is, according to the doctrine
in Pickard v. Sears, 6 A. & £. 469 (E. G. L. R. vol. 83), precluded (I
purposely avoid using the word estopped) from denying that fact against
that person. I think in holding this we follow out the doctrine laid
down in Aslin v. Parkin, 2 Burr. 665. There Lord Mansfield lays down
that which is now familiar law, that « An action for the mesne profits
is consequential to the recovery in ejectment. 'It may be brought by
the lessor of the plaintiff in his own name, or in the name of the nominal
lessee; and in either shape, it is equally his action. The tenant
*l7ni *'^^ concluded by the judgment, and cannot controvert the title.
^ Consequently, he cannot controvert the plaintiff's possession;
because his possession is part of his title.'* All this is applicable to all
actions in ejectment in which there has been judgment. But Aslin v.
Parkin was a case in which the judgment had been by default against
the casual ejector ; and Lord Mansfield adds : «« As to the length of
time the tenant has occupied, the judgment proves nothing." These
words are, I apprehend, applicable only to a judgment by default: but
at all events the altered form of the consent rule alters this if it was
applicable to a judgment after the defendant appeared. The defendant
now at least admits he was, by himself or his tenant, in possession at
the time of the service of declaration. With respect to value, the
demise and consent rule prove nothing ; but in this case the value was
proved by independent evidence. Rule refused.(a)

(a) Reported by C. BUekburn, Esq.
See Stat. 15 A 16 Viot. e. 7A, s. 207.

*171] *In the Matter of WADSWORTH and the QUEEN OF SPAIN.
In the^Matter of DE HABER and the QUEEN OF PORTUGAL.

Property in England, belonging to a foreign soverei;!:n prince in his pablie oapacity, cannot be
■eiKed under process in a suit instituted again.sb him in this country on a cause of action
arising hero.

And, therefore, where a snit bad been brought in the Lord Mayor's Court against the Queen
of Spain, upon bonds of the Spanish gOTemment bearing interest, payable* in London, and
moneys, belonging to her as the sovereign of that country, had been attached in the hands of
garnishees in London, to eompel her appearanoe^ the Coort of Qneen's Bench granted a
prohibition.

Although the action was not. In form, brought against the Queen as soTcreign : it appearing
sofficiently by the proceedings that she was charged with liability in that eharaotar.

17 ADOLPHUS & ELLIS. N. 8. 171

The atme law preraila, i fortiori, whera the aotioo is avowedlj granted on aota done by tlie

derendant in the character of Sovereign.
The garnishee, in such a cnse, is a proper party to more for the prohibition.
And it ia no objeotion* that he has put in a plea (Nil habet) to the attachment.
Kor if the motion premature, if mnde after the pleading of such plea and before U'ial of the iesuef

tbaagb no other excess of jari!>diction is imputed to the Lord Mayor's Court than its having

entertained the suit
The motion may alao be made hy the sovereign prince who ia defendant in the Mayor's Courts

though 0nch defendant has not appeared, and ^e garnishee has not pleaded.
The prohibition may go at the instance of a mere stranger.

Lv the first of these cases, Chambers, on behalf of the a£|(er-mentioDed
garnishees, moved, in last Easter term (April 15tb), that a prohibition
might issue to The Lord Mayor*s Court of London, under circumatances
disclosed in an affidavit sworn by Henry Treasure, Clerk to Messrs.
Lawford, attorneys, and Joaquin Scheidnagel and George Stone^
garnishees in the suit Wadsworth v. The Queen of Spain, depending in
the said Court.

H. Treasure deposed : That he hath the conduct and management of
a certain cause now pending in the Court of the Lord Mayor of the
City of London, wherein one Thomas Page Wadsworth is the plaintiff,
and Her Catholic Majesty Dofia Isabel Segunda, Queen of Spain w-^-^jq
*(iu the said cause described as Her Most Christian Majesty ^
Dofia Isabel Segundar Queen of Spain) is defendant, and wherein the
above-named deponent Joaquin Scheidnagel is garnishee, and also the
above named deponent'^eorge Stone, together with John Martin, James
Martin, and Robert Martin, are garnishees, in two certain attachments
issaing out of the said Court. That the cause of action, as appears by
an affidavit filed in the said Court by T. P. Wadsworth on 30th Decem-
ber, 1850, ia for 10,000Z. sterling for interest alleged to be due to him
from Her said Catholic Majesty upon certain bonds or certificates dated
respectively the 10th December, 1834, and stated by Wadsworth to
have been duly made and entered into by or on behalf of Her Majesty
the then Queen Regent of Spain, in the name of her august daughter
the said Donna Isabel, &c., the defendfint, by virtue of the law decreed
by the Cortes and sanctioned by Her said Majesty the said Queen
Regent in the name of her said daughter the Queen of Spain, on 16th
November, 1884; and of the alleged treaty between the Minister,
Secretary of State for the Finance department of Spain, and Mons.
Ardoin, banker, of Paris, on 6th December, 1834.

The deponent George Stone stnted that, on 30th December, 1850, he

and his partners, JoJin Martin, James Martin, and Robert Martin, who,

with deponent, carry bn business as bankers in the City of London, were

^served with the following document, addressed to them and dated

* December 80th, 1850.

"Take notice that, by virtue of an action entered in the Lord
Mayor's Courti Londoni against Her Most Christian Majesty Dofia

172 WADSWORTH v. QUEEN OF SPAIN. T. T. 1851.

^^.-o-i Isabel Segundar Qneen of *Spain, defendant, at the snit of
■^ Thomas Page Wads worth, plaintiff, in a plea of debt npon de-
mand of 20,0002., I do attach all such moneys, goods, and effects as yea
now have, or which hereafter shall come into yoar hands or custody, of
the said defendant, to answer the said plaintiff in the plea aforesaid :
and that yoa are not to part with such moneys, goods, or effects without
license of the said Court. Chas. Sewell, Serjeant at Mace.

Geo. Ashley, plaintiff's attorney, Lord
^ Mayor's Court Office, Old Jewry."

Scheidnagel deposed that, on the same 80th December, he was served
with a document, addressed to him, but in all other respects the same
as that above set forth. That he is president of a Commission called
the Spanish Financial Commission, which was appointed in 1834 by the
Government of the kingdom of Spain for the management in England
of the affairs relative to the public debt of the said kingdom, and for
facilitating the payment of interest or dividends payable on account of
the said kingdom to the holders in England of certain bonds or certifi-
cates, and of other public securities issued by or on behalf of the said
kingdom ; and that, as the president of the said Commission, he hath,
for the purpose of paying in England the coupons or half-yearly divi-
dends of the said bonds or certificates, from time to time received from
the Director-general of the said kingdom of Spain, one of the ministers
of the said Queen of Spain, divers large remittances ; and that the same
have accordingly from time to time been applied to the purposes of such
payments as and when the holders of the said bonds have presented to
♦1 7dl ^^^ ^^^^ ^Commission the said coupons ; but that the holders of
-' a large number thereof had not, at the time of the service of the
said two attachments, presented such coupons, or in any other manner
applied for payment of the dividends or interest in respect thereof; and
the residue of the said moneys, amounting to 7456Z. 19«. 6d. or there-
abouts, so remitted as aforesaid, and applicable to the payment of the
same, have therefore remained under the control of the said CommiB-
sion, awaiting the presentation of the said coupons, and, at the time of
the service of the attachment, were in the hands of the said Jo. Martin,
G. Stone, Jas. Martin, and R. Martin, as the bankers of the said
Financial Commission: And that, some time previous to the days
appointed for the payment of such respective half-yearly dividends or
coupons, and subsequent to the receipt of the remittances for such
respective payments, the said Financial Commission, in conformity with
the directions given by the said Director-general of the said Kingdom
of Spain, caused advertisements to be from time to time inserted in the^
English newspapers, naming the day on which such respective payments
would be made of the interest due upon the said bonds : And that
deponent had not, at the time of the service of the said attachments

17 ADOLPHUS & ELLIS. N. 8. 274

respectively, nor, as he verily believed, had the said Jo. Martin, O.
Stone, Jas. Martin, and R. Martin, or either of them, in their possession
or power any moneys, goods, and effects of the said Queen of Spain as
her private property and nnconnected with the government of Her said
Kingdom : And that Her said Catholic Majesty Doiia Isabel was, at the
time of the commencement of the said action, and now is, the reigning
Sovereign of the Kingdom of Spain, *and as such entitled to, ^^^-,^1-
and then enjoyed and is now enjoying, all the rights, preroga- '-
tives, and privileges appertaining to such sovereignty : And that the said
bonds or certificates were made by the said then Queen Regent of
Spain as aforesaid in her Sovereign character only, and for and solely
on account of the said Kingdom of Spain, and as an act of state in the
government thereof, and not for or in respect of any private or personal
debt owing by the said Queen Regent, or by Her said Catholic Majesty
Dofla Isabel, to the said T. P. Wadsworth : And that Her said Catholic
Majesty was, at the time of the commencement of the said action, and
now is, resident and domiciled within the Kingdom of Spain and out of
the jurisdiction of this Honourable Court, owing no allegiance at any
time to the Sovereign Lady Queen Victoria ; and that Her said Catholic
Majesty Do8a Isabel is recognised and acknowledged by the said
Sovereign Lady Queen Victoria as the now reigning Sovereign of the
Kingdom of Spain ; and that the said last-mentioned Kingdom is at
amity with the Crown of Great Britain and Ireland.

The deponent H. Treasure further stated that the action in the Loyd
Mayor's Court was commenced on 80th December, 1850 ; that Scheid-
nagel pleaded to the attachment Nil habet, and the defendants Martins
and Stone Nil habent ; but the issues had not yet been tried ; though
deponent believed that Wadsworth intended proceeding to trial of the
attachments as soon as the practice of the Lord Mayor's Court would
allow, and, in the event of his obtaining a verdict, would sue out exe-
cution to recover the moneys in the hands of the garnishees Martins
and Stone, unless prohibited by this *Coart. He further de- r^nno
posed : That he hath been advised and verily believes that, in ^
the event of the said T. P. Wadsworth proving upon the trials of the
said attachments that the said garnishees respectively have moneys in
their hands as aforesaid, he will be immediately afterwards entitled to
sue out process to levy and take into execution the amount so proved
to be in the hands of the garnishees respectively, unless special bail be
given for Her said Catholic Majesty for the amount sought to be reco-
vered by the said T. P. W. : That, on 29th January last, application
, was made by counsel to the Recorder of the Lord Mayor's Court to
dissolve the said attachments on common. bail being filed on behalf of
the Queen of Spain, on the ground that a foreign independent Sove-
reign could not be held to bail : but- the Recorder refused to dissolve
the attachments; and the same now remain in full force : And deponent

176 WADSWORTH v. QUEEN OP SPAIN. T. T. 1861.

hath been advised, and verily believes, that, bj the laws and castoms
of the City of London, no plea upon the trial of the said attachments
oan be entered on the part of Her said Catholic Majesty the Queen of
Spain, or demurrer or other proceeding tendered or put in by the gar-
nishees, whereby the question of jurisdiction of the said Lord Mayor's
Court to call upon Her said Catholio Majesty to answer the matters
complained of by the said T. P. W. can be raised, or the power of the
said Lord Mayor's Court to attach the said money of Her said Catholic
Majesty questioned, nor can any steps be taken in the said Lord May-
or's Court whereby the question of Her said Catholic Majesty's liability
in respect of the alleged causes of action of the said T. P. W. can b«
decided, unless special bail shall hare been first given on behalf of Her
said Catholic Majesty.

*1771 *Thc affidavit of H. Treasure verified a copy of Wadsworth's
^ afiSdavit of debt in the cause, and copies of the record and pro-
ceedings in the attachments, and of one of the bonds or certificates
referred to in Wadsworth's affidavit. The bond or certificate was
headed (so far as the terms are material) :

" Public Debt of Spain.
Great Book of Five per cent,

the active debt. consols."

A, translation of the body of the instrument was annexed to the copy,
und was as follows :

(« The bearer of this certificate is entitled to an annuity of ten hard
dollars, equivalent to fifty-four francs or two pounds two shillings and
six pence sterling, representing a capital of two hundred hard dollars,
one thousand and eighty francs, or forty-two pounds ten shillings ster-
ling, by virtue of the law decreed by the Cortes and sanctioned by Her
Majesty the Queen Regent in the name of her august daughter Dofia
Isabel II., the 16th November, 1834, and of the treaty concluded be-
tween the Minister Secretary of State for the finance department, and
M. Ardoin, banker, of Paris, the 6th December of the same year.

The said annuity will be payable in Madrid, lliris, or London at the
option of the bearer, half-yearly, on the 1st May and 1st November in
each year, on presentation of the dividend warrant then due : in Paris
at the rate of fivo f'rnncs forty centimes per hard dollar, a *••! in London
at four shillings and three pence sterling, also per hard <iollar.
*17R1 ^^^ bearer has the option of causing this certificate *to be

« ^ definitively converted into an extract of inscription, payable in
Madrid.

To this certificate are attached forty dividend warrants. If at the
end of twenty years it should not have been withdrawn from circulation
either by means of redemption or of conversion into an extract of
inscription, forty new dividend warrants shall be delivered on the pre-

17 ADOLPHUS & ELLIS. N. S. 178

fent&tion of this certificate with the dividend warrant preceding that
which latest becomes due."

The instrament was dated « Madrid, 10 December, 1834/' and pur-
ported to be subscribed by The Secretary of State for foreign affairs,
The Count Toreno, and by The Director of the Royal Sinking Fund
(uEl Director de la Real Caja de Amortizacion") and of the Great
Book, Ant^ Barata.

The affidavit of debt was as follows.

(« In the Mayor's Court, London.
« Thomas Page Wadsworth, of No. 11 Down Street Piccadilly," 4c.,
<(maketh oath and saith: That Her Most Christian Majesty Dofia
Isabel Segundar, Queen of Spain, is justly and truly indebted unto
this deponent in the sum of 10,000Z. sterling and upwards for interest
upon and by virtue of certain bonds or certificates, bearing date re-
spectively the 10th day of December, 1884. and duly made,*' &c. (de-
scribing them as at p. 172, ant^) : << And which said interest was due
and payable on certain days now past.
Sworn at the Lord Mayor's T. P. Wadsworth.

Court Office, London, this
30th day of December,
1850. Before me,. G.Ashley."

*The subsequent proceedings were: I'he declaration in the r^i^^q
Lord Mayor's Court, whereby the plaintiff "demands against *•
Her Most Christian Majesty Doiia Isabel Segundar, Queen of Spain,
20,000/. of lawful money of Great Britain which she owes to and un-
justly detains from the said plaintiff. For that, whereas the said de-
fendant, on," &c., <'at the parish of St. Helen, London, and within
the jurisdiction of this Court, for and in consideration of divers sums
of money before that time due and owing from the said defendant to
the said plaintiff at the parish aforesaid and within the jurisdiction
aforesaid, and then being in arrea^ and unpaid, granted and agreed to
pay to the said plaintiff the said sum of 20,0002. above demanded
where and when she the said defendant should be thereunto afterwards
required : Yet, notwithstanding, the said defendant, although often
thereto requested, hath not yet paid to the said plaintiff the said sum
of 20,000/. above demanded, or any part thereof. To the damage," &c.

Then followed prayer of process by the plaintiff; award of summons
calling on defendant to appear and answer ; return to the Court that
defendant had nothing within the City or Liberties whereby she could
be summoned, nor was to be found within the same ; non-appearance and
default by defendant on being called at the same Court : allegation by
plaintiff at the same Court that Scheidnagel owes defendant 10,000/. in
moneys numbered, «< as the proper moneys of the said defendant," and
now has and detains the same in bis hands and custody ; prayer of process

TOL. XVII. — 17

179 WADSWORTH v, QUEEN OP SPAIN. T. T. 1851.

by plaintiff, to attach, &c. ; whereupon the Serjeant at Mace was eoni-
manded by the Coart that he, according to the custom, &c., attach the
*1801 ^^'^ defendant by the said 10,0002. so *being in the hands and
-^ custody of the said garnishee as aforesaid, and the same in his
hands and custody defend and keep, so that the said defendant may
appear in this Court here to be holden, &c., to answer the said plaintiff
in the pleii aforesaid; and that the said Serjeant at Mace return, &c.:
appearance by plaintiff at a Court holden 13th January, 1851, and
return by the Serjeant that he had attached defendant by the said
10,0002. so being in the hands and custody of the said garnishee, and
the same defended, &c., according to the custom, &c., so that defend-
ant migkt appear at this Court to answer in the said plea : And that
defendant thereupon was solemnly called at the same Court and did not
appear, but made a first default, which was recorded, and a further day
given to defendant to appear at the next Court, to be holden, &c. :
similar defaults by defendant at three other Courts, plaintiff appearing:
prayer of process by plaintiff, at the fourth Court, against the gar-
nishee, and order by the Court, thereupon, that the Serjeant warn the
garnishee to appear on 17th January to show cause why plaintiff onght
not to have execution of the 10,0002. attached in garnishee's hands :
appearance on the day named, and imparlance, by the garnishee, who,
on a subsequent day, pleaded :

That, at the time of making the said attachment, or at any time
since, he had not owed to or detained from, or yet has, owes to or de-
tains from, the said defendant named in the bill original and attach-
ment aforesaid the said 10,0002. or any part thereof, in manner and
form, &c. ; concluding to the country.

Then followed a bill of proof by Thomas Paterson, of Liverpool,
merchant, praying to be admitted to prove that the 10,0002. is his pro-
*1»11 P^^^7' ^^^ probation by the ^same party, alleging that be
-' claimed interest in the 10,0002. (parcel of the said 20,0002.), for
that the same was received by the garnishee, and held by him, for and
on account of the defendant ; and that, while the same was so held by
the garnishee, a negotiation was pending between the approver and de-
fendant for the supplying to defendant by the approver of certain large
quantities of corn, to wit, forty ship loads : that, ultimately aiid before
the said attachment, a contract was made and entered into by and be-
tween the approver and defendant ; and, by the terms of such contract,
the approver was to supply forty ship loads of corn to the defendant
at the times and periods mentioned in such contract: That, on such
contract being made, the approver required a sum of money from de-
fendant on account of such shipments, to wit, 10,0002. : That defend-
ant agreed to pay the said sum of money, and arranged that the same
should be paid to the approver by remitting the same to Joaquin Scheid-
nagel, the defendant's agent in London, being the garnishee in the said

17 ADOLPHUS k ELLIS. N. S. 181

tttochment, and then, at the time of the making the said contract and
before the making the said attachment, gave the said approver an order
to receive the said 10,0002. when paid to defendant's said agent in Lon-
don, 80 being the garnishee as aforesaid, for the speci$c purpose of
payiDg the same to the approver ; which order is dated long before the
iflsoiDg the said attachment, to wit, on 2d November, 1850 : And that
the said sum was so placed in the hands of the garnishee by defendant
for the specific purpose of applying the same to the order above men-
tiooed: Wherefore the approver claimed the said 10,0002., and he
offered to verify the premises, and that the 10,000/. was his property,
in manner, &c., as he had claimed: and *he prayed to be ad- r^-tna
mitted to prove the same, according to the custom of the City. ^

There were also proceedings (similar to the earlier ones in the case
of Scheidnagel) resulting in the attachment of 10,0002. in the hands of
Martins and Stone ; warning to them to show cause, &c. ; plea by them
that, at or since the time of the attachment, they had not owed to or
detained from defendant the said 10,0002. or any part thereof, in man-
ner, fcc, concluding to the country : bill of proof and probation by the
laid Thomas Paterson, alleging facts as stated on the probation in
Schiednagers case, as to the contract for corn, and demand by Pater-
son of 10,0002. on account : And that the said defendant agreed to pay
the said sum of money last mentioned, and arranged Ihat the same
should be paid to the approver by remitting the said sum of 10,0002.
to one Joaquin Scheidnagel, the defendant's agent in London, with
directions to the said J. Scheidnagel to place the said sum in the hands
of the garnishees named in the present attachment, to meet the pay-
ment of the order after mentioned, and then, at the time of making the
aforesaid contract, and before the makings of the said attachment, gave
the said approver an order to receive the said 10,0002. when paid into
the hands of the garnishees as aforesaid for the specific purpose of pay-
ing the same to the approver; which said order is dated long before
the issuing of the said attachment, to wit on 2d November, 1850 : That
the said sum was so placed in the hands of the said garnishees by de-
fendant through her agent for the specific purpose of applying the
same to the payment of the order above mentioned : Wherefore the
said approver claimed, &c. ; as before.

^Chamben^ in moving, cited The Duke of Brunswick v. The King ^^^ ^^
of Hanover,(a) and contended that the sovereign prince of a foreign '-
realm could not be sued in an action which required that she should put
in special bail to answer in a court of this country for an act of state : and,
eonsequently, that proceedings could not go on against the garnishees.
[Lord Campbbll, 0. J. — ^Mnst there be an affidavit of debt, to com-

(a) In the SoHf Court, 6 B«aT. 1. 8mb« v. Same la Dom. Proc. (deorte of RoUi Coort
sftnMd), 2 Ho. Lordf Ca. 1.

188 WADSWORTH v. QUEEN OF SPAIN. T. T. 1851.

mence a sait in the Lord Mayor's Coort ?] Randall (with Chamberi^
— *There must, by the custom.

A rule nisi was granted. In last Easter Term, (a)

ffogffins, WeUhy^ and Locke showed caase.(() — The affidavits in sop-
port of the rule show a case within the jurisdiction of the Lord Mayor's
Court. No objection can be founded on the affidavit of debt, which is
nnnecessaiPy, and no part of the proceedings in the Coort. (On this
point Banks v. Self, 5 Taunt. 234 (note), and Hatton v. Isemonger, 1
Stra. 641, were cited.) [Lord Gampbbll, C. J. — The affidavit is in-
tended to show the cause of action. It seeks to be evidence against
the plaintiff, as far as it goes, see p. 198, post.] The proceeding in
question is against a garnishee according to the custom of foreign
attachment. Assuming that in some stage of the case the Queen might
interpose, and allege something to defeat the action, a prohibition can-
♦1«41 ^^^ 8^' '^^^ l»oxA Mayor's *is the only Court which has joris-
^ diction in this kind of proceeding ; and, if a prohibition lay under
the present circumstances, the party complaining would have no remedy :
for which reason privilege, of attorneys or others, is not allowed to oust
the Court of jurisdiction .in foreign attachment; Turbill's Case, 1 Wms.
Saund. 67, Gilb. Com. Pleas, 209, Ridge v. Hardcastle, 8 T. B. 417.
The practice is fully set out in Bohun's Privilegia Londini, 253, et seq.,
8d ed. It is enough, for the purpose of instituting a foreign attach-
ment, to show that the garnishee, being within the city, has funds of
the defendant ; and, if the garnishee does not come in and establish
anything that may discharge him, which the defendant also is at liberty
to do, then, according to the certificate of the Becorder of London,
cited in note (1) to Turbill's Csse, «« judgment shall be, that the plain-
tiff shall have judgment agjiinst him" (the garnishee), *< and that he
shall be quit against the other, after execution sued out by the plain-
tiff." [Lord Campbell, C. J. — The garnishee's payment is tak.en to
be a payment by the defendant. Patteson, J. — Surely the foundation
of all this proceeding is a debt as to which the Court has jurisdiction
over the defendant. As you argue, if there were funds in the city be-
longing to the Queen of England, there might be an attachment against
the garnishee.] In Banks v. Self, 5 Taunt. 234, note (E. C. L. B.
Yol. 1), cited and acted upon in Harrington v. Macmorris, 5 Taunt. 228,
the defendant pleaded a recovery against him as garnishee in a suit
against the plaintiff, defendant being debtor to plaintiff at the time :
and on demurrer it was objected that the suit against the now plaintiff
*18^1 ^° ^^^ Court below was not shown to '^'have been brought for &
^ debt arising within the jurisdiction : but the Court of Comraoa
Pleas held this no valid objection, and gave judgment for the defendant.

(a) May 10th. Before Lerd Campbell, C. J., Patteaon, Wigbtmaa, and Brie, Js.
{h) Onmey attended on behalf of the oitj of London to watch the proeeedingi, lest the
«f foreign atUohment eboold be SnfUnged upon.

17 ADOLPHUS ft ELLIS. N. 8. 186

[Lord Campbell, 0. J. — The question there was, whether it mast posi-
tWely appear on the pleadings that the Court had jarisdiction : it was
not said that the want of jurisdiction, if averred, might not have been
an answer. Erle, J. — The decision is only that things done before a
competent tribunal, are presumed to be rightly done.] In Self v. Een-
nicot, 2 Show. 506, the defendant pleaded to debt on bond i* that the
plaintiff being indebted to J. S. he made an attachment of the said
money in his hands ;*' on demurreri one objection was, that << it doe^
not appear that the debt arose within the jurisdiction;" and it seem»
that the plea was held good. [Lord Campbell, C. J. — The authority
is a slender one for a wide proposition.]

It is a well established rule that a prohibition shall not issue to a
Court of peculiar jurisdiction, upon the apprehension merely that such
Court will exceed its powers ; though the remedy may be grantable if
it appear, in the course of the proceedings, that such an error is, or is
about to be, committed. Among the cases laying down this principle,
and showing its application, are Home v. Earl Camden,(a) Chesterton
p. Farlar, 7 A. & E. 713 (E. G. L. R. vol. 84), Case of the Danish Ship
Noysomhed, 7 Yes. 693, Johnson v. Shippen, 2 Ld. Raym. 982. The
Court cannot, in the present case, see any particular in which the Lord
Mayor's Court is ^exceeding its jurisdiction. Nothing has been r^^io/*
done contrary to the due administration of justice. The bond ^
itseir is not made part of the record. It does not appear that any
application has been made to the Lord Mayor's Court to stay proceed-
ings in the suit because the Queen cannot be sued there. The present
motion is qaia timet. If the objection is taken on the trial, the Judge
of the Lord Mayor's Court will deal with it, and it may be brought
before a Court of Error ; Horton v. Beckman, 6 T. R. 760, Clark v.
Denton, 1 B. & Ad. 92 (E. C. L. R. vol. 20). [Lord Campbell, C.
J. — The qaestion as to jurisdiction may arise on facts not necessarily
appearing by the record.] That might be so ; as in Day v. Paupierre,
13 Q. B. 802 (E. C. L. R. vol. 66). The subject-matter of this suit
being within the jurisdiction of the Court on a concessit solvere, the
proper mode of defence on the part of the Queen would have been to
appear and put in a plea. The defence, that the borrowing was an act
of state, would have been fully available in that form, and would, it
must be presumed, have been properly disposed of by the Court. At
present, this Court cannot say, on looking at the bond or certificate
sued upon, that it may not be ground for an action against the Queen
personally. What the law on that subject was, in the particular case,
would depend on the evidence. [Erlb, J. — The instrument itself in-
forms the bearer that it is made by virtue of a law decreed by the
Cortes and sanctioned by the Queen Regent, and of a treaty concluded

(a) In Dom. Proo. 2 H. Bl. 533, affirming the judgment of K. B. in Lord Camden «. Hom«^
4 T. R. 382, which rereraed the jadgment of Oom. PL in Home v. Earl Camden, 1 H. BL 476

188 WADSWORTH ». QUEEN OF SPAIN. T. T. 1861.

bj the Secretary of State. Suppose the plaintiff on his affidavit showed
expressly that he coald have no right in an action against the Queen
individually : would the Lord Mayor's Court still be entitled to pro
*1H71 ^^^^^ Suppose he made *it appear that his demand was like

-* that made against the Queen of England in the Baron de Bode*8
Case, 8 Q. B. 208 (E. G. L. R. vol. 55),(a) where the grounds alleged
were, to the understanding of any person acquainted with the law, a
direct disaffirmance of the claim.] It would still be matter of inquiry,
on the trial, what the facta were. The instrument primfi facie creates
a liability in London.

But, further, the garnishees here have taken issue on a fact concern-
ing themselves exclusively; that they have not the money in their
hands. After this, they cannot set up another answer, which regards
the defendant only. [Lord Campbell, C. J. — They have an interest
in it, because, if the Court has no jurisdiction, they are discharged.]
The course on an attachment is thus decribed in Bohun's Privilegia, p.
256. <« The garnishee, if he think fit, may appear in Court by his
attorney, and wage law, or plead, that he has no maney in his hands of
the defendants, or other 'Special matter, or he may confess it." Bat,
« if the plaintiff in the attachment shall obtain a verdict and judgment
for the money or goods attached in the garnishee's hands, yet the
defendant in the attachment may at any time before satisfaction acknow-
ledged upon record, put in bail to the plaintiff's action upon which the
attachment is grounded, and thereby discharge the judgment and pro*
oeedings against the garnishee ; yea, though the garnishee be taken
in execution, he shall be discharged if bail be put in as aforesaid.*'
[Lord Campbell, C. J. — Would not it be special matter pleadable by
the garnishee, that the defendant is a person over whom the Court has
^-incy^ no jurisdiction?] There is no precedent of *such a plea: and,

•^ at all events, the time for it has been let pass. [Erlb, J. — It is
not always true that a party who was entitled to object to the jurisdic-
tion, but has allowed the cause to be tried on the other matters in dis-
pute, cannot afterwards have a prohibition. The contrary has been held
on prohibition to a County Court, where title had come in question.]
In Thompson v. Ingham, 14 Q. B. 710 (E. C. L. R. vol. 68), which was
such a case, the question of jurisdiction had been raised at the proper
time in the County Court. [Lord Campbbll, C. J.— ^Do you allow that
the garnishee might move for a prohibition before plea pleaded ?] He
might ; but not after he has put in a plea which admits the jurisdiction.
An Anonymous case in 1 Yentris 236 agrees with this view ; and In re
Jones and James, 1 Lowndes, M. & P. 65, is a direct authority on the
point. [Erlb, J. — My opinion in that case must be taken to have been
reviewed and found wrong.]

As to the principal question : the case is, that the defendant has

(a) Baron de Bode v. The Qaeen, 13 Q. B. 3S0 (E. C. L. B. toL 66).

17 ADOLPHUS ft ELLIS. N. S. 188

rabed money within the jarisdiction of the Lord Mayor's Court by bonds
bearing an interest payable in London. Nothing appears that can
legally distinguish the funds attached from the Queen's own funds. She
appears to have the control of them all. In The Duke of Brunswick
V. The King of Hanover, 2 H. Lords Ga. l,(a) cited in moving for this
rule, it was held that a foreign prince, being in this country, could not
be made amenable to the Court of Chancery for acts done in exercise
of his sovereign authority : but those acts were done in his own domi*
nions ; a circumstance particularly noticed by Lord Gottenham in his
address to the Hous£ *of Lords. In the same case, at the Rolls, r^i^Q
Lord Langdale, after observing that «< The law of England affords ^
no authority for the proposition, that sovereign princes resident here
may not be sued in the Courts here," cites De la Torre v. Bernales, 1
Hov. Supp. to Vesey, 149, where. Vice-Chancellor Sir J. Leach ordered
the King of Spain to be named as party to a suit the object of which
was to charge Bernales in respect of acts done by him as the King's
agent, and (« laid it down, that a foreign government, or sovereign, could
both sue and be sued in the Courts of this country.'* [Lord Campbell,
C. J. — The act in question here was not done by the Queen personally.
Oat by her mother, while regent.] A person raises money in London
for the Queen of Spain. [Lord Campbell, C. J. — The instrument it
not signed by her, but by a public oflScer ; like our Exchequer bills.] It
is not necessary that the Queen should have actually put her own seal
(0 the bond, to render her liable. AflBdavit is made in the cause that
dhe is the party indebted. It appears that the Cortes have authorized
her to borrow money ; but this Court cannot judge of the nature and
effect of that authority. Before the reign of Edward I., the King, even
of this country, might have been sued in the Courts.(i) Since the pro-
ceeding by petition of right was instituted, that is no longer so ; but a
foreign prince may still be sued, at least upon engagements entered into
here. [Patteson, J. — The liability of a foreign prince upon acts done
in his own dominions came into question in Munden v, Duke of Bruns-
wick, 10 Q.'B. 656 (E. C. L. R. vol. 59) ; but there was no decision on
the point.]

*Chamber$j Peacock^ and Randell^ contri. — The suit has r<,^QA
arrived at this point : the garnishees having pleaded, issues have ^
been joined upon the pleas, and now stand for trial, the result of which,
if the pleas be not proved, will be that execution will go against the
moneys of the defendant, unless she put in bail within a year and a
day to appear and try in the Lord Mayor's Court. The questions are,
whether prohibition lies, and whether it is now properly applied for.
Now the rule is, that a prohibition will be granted whenever the Supe-
rior Court can see that the Court below has exceeded its jurisdiction.

(a) S. C. in the RoUa Court, 6 BeaT. 1.

(6) 8«« 16 Yin. Abr. 536, Ut Prero^iv o/cA« Kimg, (Q. 4).

190 WADSWORTH c, QUEKN OP SPAIN- T. T. 1851.

And (assatning that the garnishees here are not entitled as parties to
demand it) the prohibition may issae even at the instance of a stranger;
a rule founded not only in justice to the subject but in a jealous regard
to the prerogative of the Crown : for «« there are two things in prohi-
bition, 1st contempt of the Crown, and disherison of it in taking on
them judicial power where they have no right ; 2d is a damage to the
party;" Ede.v. Jackson, Fortesc. 345. ««And the King's Courts that
may award prohibitions, being informed either by the parties them-
selves, or by any stranger, that any Court temporal or ecclesiastical
doth hold plea of that whereof they have not jurisdiction, may law-
fully prohibit the same, as well after judgment and execution as before;"
2 Inst. 602. The rule on this subject has been exemplified in the late
decisions as to the County Courts. [Lord Campbell, C. J. — Those
cases, as well as Home v. Earl Camden, 2 H. Bl. 533, 4 T. R. 382, 1
H. Bl. 476, seem to press you a good deal.] In Home v. Earl Camden,
*1Q11 ^^^ Court of Appeals in cases of prise, to which the ^prohibition
^ went, had exclusive jurisdiction over the matter which they had
decided, namely, whether a certain capture was prize or not within the
pri^e Acts then in force : and therefore prohibition was held not to lie.
But, if they had been exceeding the bounds of the common law in con-
struing the Acts, they might have been prohibited, even after sentence^
according to Gare v. Gapper, 3 East, 472, and Gould v. Gapper, 5 East,
345, and other authorities. Therefore the garnishees here are not
barred by having pleaded. The principle (acted upon in Hall v. Made,
7 A. & E. 721 (E. C. L. B. vol. 34)), that a Court should not be pre-
sumed likely to exceed its jurisdiction, does not apply when the Court
has entertained a suit of which, originally, it ought not to have taken
cognisance. Now, in the present case, the Queen, the defendant in
the suit, has never been summoned. It is not pretended that she has :
but it is assumed that, because the debt arose, as it is said, within the
jurisdiction, and nothing is found therein by which the defendant can
be summoned, and the defendant herself is not to be found there, a
summons may, by custom, be supposed. But, if it wa# impossible,
legally, that the Queen could be summoned, a summons cannot be sup-
posed ; and it was held in a case from the Tolzey Court of Bristol,
Bruce v. Wait, 1 Man. & G. 1 (E. C. L. R. vol. 39), that, on general
principles, a custom to issue foreign attachment without summons would
be bad. [Lord Campbell, C. J. — The principle relied upon is, that a
debt within the jurisdiction gives authority to the Court, though the
debtor lives out of the jurisdiction. The law is so in Scotland.] It
ought at least to be possible that the debtor should have the opporta-
*iq>7i "'^7 ^^ appearing. ^Buchanan v. Rucker, 1 Camp. 63, 9 East,
'^^ 192, is another authority against the suggested custom. [Lord
Campbell, C. J. — What is there to show that a personal service ought
to be practicable ?] It is at least requisite that, if a summons were

17 ADOLPHUS k ELLIS. N. 8. 192

served, the summons should have force to compel the party to dome in.
The present case differs from others inasmuch as the defendant always
was, and must be, out of the jurisdiction. This is not an objection which
can be waived by pleading, in the case of a garnishee,, more than if it
were that of an ambassador. Lord [Campbell, C* J> — One difficulty
you have is, that there are, as it seems, cases in which a foreign prince
may be sued, and the Court below may be proceeding to decide, but
not wrongly, as to this being one of them.] The assumption, that this
is such a case, should be sustained by those who allege the jurisdiction :
bat the contrary appears from the affidavits, the bonds, and the pro-
oeedings in the suit.

Then, has the Lord Mayor's Court any jurisdiction, for the purpose
of a suit, over a Queen of Spain resident in her own dominions ? In
Douglas V. Forrest, 4 Bing. 686, 702, 8 (E. C. L. R. vol 18, 15), Best,
C- J., said that «« a natural born subject of any country, quitting that
oountry, but leaving property under the protection of its law, even
daring his absence, owes obedience to ihose laws, particularly when
those laws enforce a moral obligation :'* but he distinguished such a
ease from Buchanan v. Rucker ; and he added : « To be sure if attach-
ments issued against persons who never were within the jurisdiction of
the Court issuing them, could be supported and enforced in the country
in which the person attached resided, the legislature of '^'any t^^qq
country might authorize their Courts to decide on the rights of *-
parties who owed no allegiance to the government of such country, and
were under no obligation to attend to its Courts, or obey its laws.
We confine our judgment to a case where the party owed allegiance to
the country in which the judgment was so given against him.'* In the
present case, the consequence of a finding against the garnishees will
be, that the party holding 10,0002. which is the money of the Spanish
govornment will be unable to say that it is so till the Queen puts in
bail ; a step by which she would acknowledge the jurisdiction of the
' Court. If the proceedings in this case are valid, a ship of war belong-
y ing to tiie Queen of Spain might be attached ; an act which might lead
to disastrous public consequences. This evil was pointed out by Lord
Langdale in the Duke of Brunswick v. The King of Hanover, 6 Beav.
1, where his Lordship observed : <« The cases which we have upon this
point go no further than this ; that where a foreign sovereign files a
bill, or prosecutes an action in this country, he may be made a defend-
ant to a cross bill or T>ill of discovery in the nature of a defence to the
proceeding, which the foreign sovereign has himself adopted. There
is no case to show that, because he may be plaintiff in the Courts of
this country for one matter, he may therefore be made a defendant in
the Courts of this country for another and quite a distinct matter :"
and he added : (a) <« The defendant insists upon it as a general rnloi

(a) 6 Bear. 40.
VOL. XVII. — 18 M 2

198 WADSWORTH v. QUEBN OP SPAIN. T. T. 1861.

that in times of peace at least, a sovereign prince is, by the law of
nations, inviolable ; that obvious inconveniences and the greatest danger
of war would ^arise, from any attempt to compel obedience to

*194]

any process or order of any Court, by any proceeding against

either the person or the property of a sovereign prince ; and indeed
that any such attempt would be deemed a hostile aggression, not only
against the sovereign prince himself, but also against the state and
people of which he is the sovereign : that it is the policy of the law
(to be everywhere taken notice of), that such risks ought to be avoided :**
to which propositions his Lordship's judgment conformed. [Lord
Campbell, C. J. — There may in any country be private property of a
foreign prince, to which these remarks would not apply.] Lord Lynd-
hurst said, in The Duke of Brunswick v. The King of Hanover, 2 Ho.
Lords Ca. 23, in the House of Lords, that it was unnecessary there to
define the circumstances (admitting that such might exist) under which
a foreign sovereign might be sued here for acts done abroad : but he
said : «^ It must be a very particular case indeed, even if any such case
could exist, that would justify us in interfering with a foreign sove-
reign in our Courts.*' And Lord Brougham said: «It would have
been necessary where two foreign princes came to the Courts of this
country respecting a matter transacted abroad, to have disclosed such
a case as would have shown clearly that it was upon a private matter,
and that they were acting as private individuals, so as to give the
Courts in this country jurisdiction." The process (a) here is to attach
(( air* «( moneys, goods, and effects" of the defendant without reference
to their being public or private. If the property to be taken was pri-
*1Q^1 ^-^^^' ^^^^ distinction should have been pointed at in '^all the
•^ proceedings. [Lord Campbell, C. J. — ^You say, assuming this
to be a private debt, the attachment is such that public property may
be taken for that private debt.] That is so ; and the proceeding, if
upheld, violates the law of nations. To that law Lord Mansfield, in
Triquet v. Bath, 8 Burr. 1478, 1480, refers the privilege of foreign
ambassadors and their servants against arrest ; and he notices the inci-
dent of a statute, 7 Ai|n. c. 12, having been passed, in consequence of
the Czar's ambassador being arrested. But in that case, he adds, *< U
proper application had been immediately made for his discharge from
the arrest, the matter might and doubtless would have been set right.
Instead of that, bail was put in, before any complaint was made."
Here, the erroneous course of putting in bail is declined, and applica-
tion is made directly to the Court.

The power of Courts of justice to enforce process against a foreign
state or its debtor has been lately discussed in Ffftnce. {Chamben
cited a printed memorial addressed to the Court of Cassation, entitled
i^MSmoire pour M. le Miniatre de$ Finances d'Hspagney reprSsentant

{a) Ante pp. 17S, 3.

17 ADOLPHUS k ELLIS. N. S. 195

rstat Enpagnoly centre Le Sieur Ca$auxj liquidateur de la maison Lam*
bige et Pujoly de Bayanne:*' PariSy 1846; in which some decisions,
stated to have taken place in French Conrts, are relied apon : and he
read extracts from Yattel's Law of Nations, B. 2, c. 8, sects; 85, 89,
and same work, Preliminarie9y sects. 15, 16. [Lord Campbell, C. J.— -
These are general dicta, which cannot much affect the argument.])

Our, adv. vuU.

*In De Haber tr. The Queen of Portugal Sir F, Thuiger^ in r^^qVj
last term (April 16th), obtained a rule calling on the Mayor and *-
Aldermen of the city of London, upon notice of the rule, to be given
to the Registrar, or his deputy, of the Court after mentioned, and on
Maurice De Haber, upon notice, &c., to show cause why a writ of pro-
hibition should not issue to the Court, &c., called The Lord Mayor's
Court of London, to prohibit the said Court, and also the said Mayor
and aldermen, from holding plea or further proceeding in the action
entered in the said Lord Mayor's Court by the said M. de Haber
against Her most faithful Majesty Dofla Maria da Gloria, Queen of
Portugal; therein described as << Her most faithful Majesty Dofia Maria
da Gloria, Queen of Portugal, as reigning Sovereign and supreme Head
of the nation of Portugal ;" and from further proceeding with two
foreign attachments issued out of the said Court in the said action, and
made in the hands of Senhor Quilherne Candida Xavier de Brito and
Messrs. William Miller Christy, George Holgate Forster, George
Scholefield, William Shadbolt, John Timothy Ozley, and- George Tay-
ler, respectively ; and to restrain M. De Haber from further proceed*
ing with the same or either of them.

The rule was obtained upon an affidavit, in which it was deposed
that, on 5th of July, 1850, Maurice De Haber entered an action ' in
the Mayor's Court of London against Her most faithful Majesty Dofla
Maria da Gloria, Queen of Portugal, and issued an attachment yd the
same Court against the moneys, &c., which were or should come into
the hands of Senhor Guilherne Candida Xavier de Brito. The depo-
nent stated that he had been '^informed and believed «<that the r^igir
claim of the said Maurice De Haber against her said most faith- ^
fal Majesty (if any such he has) arises for money equivalent in sterling
money to the sum of 12,1862., or thereabouts, which the said Maurice
De Haber alleged that he had in the hands of one Francisco Ferreiri
of Lisbon in the kingdom of Portugal, banker, at the period when Don
Miguel was driven out of Portugal ; and which was, by the said Fran*
Cisco Ferreiri, paid over to the Government of Portugal under the
decree of some Court in Portugal ;" and << that the cause of action (if
any there be) arose in the kingdom of Portugal, and not within the
mty of London." On this attachment the garnishee obtained a ver-
dict and judgment in the Mayor's Court.(a) On 28th March, 1851,

(a) See pp. 308, 9, pMt.

197 DE HABER v. QUEEN OF PORTUGAL. T. T. 1851.

De Haber entered another action in the same Court against «<Her
most faithful Majesty Dofia Maria da Gloria, Queen of Portugal, as
reigning Sovereign and as supreme head of the nation of Portugal ;"
and, on the same day, issued an attachment in the same Court against
the moneys, &c., which were or should come into the hands of De
Brito. The attachment issued. on an affidavit, sworn by De Haber in
the Mayor's Court, wherein he deposed : «< that Her most faithful Ma-
jesty Dofla Maria da Gloria, Queen of Portugal, as reigning Sovereign
and as supreme head of the nation of Portugal, is justly and truly in-
debted to him, this deponent, in the sum of 12,136{. for money had and
received by Her said Majesty Dofia Maria da Gloria, Queen of Portu-
gal, for and on behalf of the said nation of Portugal, for the use of
^^Qt^-j this deponent, '^and for money taken by Her said Majesty Doiia
^ Maria da Gloria, Queen of Portugal, by and on behalf of the
said nation of Portugal, from this deponent's banker; with interest
thereon."

The notice of attachment (a) to De Brito referred to the action, de-
scribing the defendant and her character as in the last-mentioned affi-
davit, and attached all such moneys, &c., as the garnishee then bad, or
which might thereafter come into his hands or custody, «< of the said
defendant, to answer the said plaintiff in the plea aforesaid."

The affidavit on which the present rule was obtiiined further stated
that' deponent had been informed and believed that the last-mentioned
claim of De Haber arose upon the same cause of action as that in the
first action ; and it repeated, as to this last action, the facts already
mentioned to have been deposed to as to the first.

The affidavit also stated that another attachment issued in each ac-
tion against Christy, Forster, Scholefield, Shadbolt, Oxley, and Tayler,
the trustees of The London Joint Stock Bank, as to which the circum-
stances did not differ from those of the attachments first mentioned*

In answer, on the part of De Haber, an affidavit by the Deputy
Registrar of the Mayor's Court was put in, which stated the custom
of London as to foreign attachments. It stated, further, that the affi-
davit on which the Mayor's Court granted the attachment << is not con-
sidered in the nature of an affidavit to hold to bail, and is not tested
by the rules applicable to such affidavits, but is taken as a protection
*1QQ1 ^^ ^^^ Court Mid suitors, *that no attachment should be made
^ without any real debt existing between the plaintiff and defend-
ant; and that such affidavit forms no part of the issue between the
plaintiff and garnishee." <<That, if upon such affidavit there should
appear any patent defect in the statement or consideration of the plain-
tiff's debt, or such a debt as will not sustain any attachment, the Court
will permit a motion to be made to dissolve the attachm^ent upon such
grounds : but such defect must appear upon the face of such affidavit ;

(a) Set oat at loBftk in the jiidfmeBt» poft» p. 206.

17 ADOLPHUS & ELLIS. K. S. 199

and the practiee has been not to allow any question affecting merits to
be entered into upon sach sammary proceeding; but that the said gar-
nishee may, at any time, make an application to the Court to dissolve
an attachment on special grounds. That no plea upon the trial of an
attachment can be entered on behalf of a defendant, because such de-
fendant is not in Court and therefore cannot be a party to the issue ;
bat, under the garnishee's usual plea of Nil habet, the Court is accus-
tomed to give great latitude to all defences : but that the garnishee is
not restricted to such plea, but may plead any special matter."
In last Easter Term. (a)

Borthufiekj for De Haber, showed cause. — It is true that a foreign
sovereign, sued in respect of transactions entered into exclusively in
the character of sovereign, cannot be compelled to appear in an Eng-
lish Court of justice. But the privilege may be waived; and it is
waived if it is not properly pleaded. That clearly ^appears from r^nf\{\
Lord Langdale's judgment in The Duke of Brunswick v. The ^
King of Hanover, 6 Beav. 1.(6) The case is somewhat analogous to
that of an action brought against the governor of a foreign possession
of the Crown for an act done in such foreign possession ; the governor,
if he insists upon his right to do the act in his character of governor,
must plead the matter speciltlly; Mostyn v. Fabrigas, 1 Cowp. 161,
172, S.(e) The Queen of Portugal, by not pleading to the jurisdiction,
has submitted to it. But, further, the present question is not between
the plaintiff and the Queen of Portugal, but between the plaintiff and
the garnishee. The defendant cannot have a prohibition, for want of
jurisdiction, before appearing in the inferior Court ; and the garnishee,
to take advantage of the objection, should plead it there ; Cook v. Li-
cence, 1 Ld. Raym. 846, 6 Bac. Abr. 589, (7th ed.) tit. Prohibition (K).
The prohibition will then go, if the inferior Court refuse the plea so as
to show unequivocally an intention to exceed the jurisdiction. If the
garnishee had pleaded only Nil habet, the Lord Mayor's Court would
unquestionably have had the' right to try an issue on that plea. He
might have pleaded to the jurisdiction ; for he can plead whatever the
defendant can ; Masters v. Lewis, 1 Ld. Raym. 56. Even if the Queen
of this realm had chosen, as she might, to sue as an individual, (eQ she
must have answered to a bill of discovery touching the matter of the
suit. Where an objection is taken to the jurisdiction- *of a county r^toA-i
court, the party becomes entitled to the writ of prohibition by ^
appearing and showing the matter before the judge, who, if he then
proceed, may be prohibited ; Thompson v. Ingham, 14 Q. B. 710 (E. C.
L. R. vol. 68). How can the plaintiff here know in what character the
Queen of Portugal opposes the attachment ? [Lord Campbell, C. J.~-

(a) M*7 10th, 1851. Before Lord CunpbeU, C. J., Patteeon, Wightmfta, ftod Brie, Ji.
(6) In the Rolls. 8. C.» in Dom. Proc., affirmini^ the ftbore deoree^ 2 H. L. Ca. I.
(e) See notei to 8. C. in 1 Smith's Lead. Ca. 863, 888 b, e. (8d ed).
{d) B— 16 Yin. Abr. 536, tit PrwrogaHw€ ofik% King (Q. 4).

201 DB HABER v, QUEEN OP PORTUGAL. T. T. 1851.

Your affidavit in the Lord Mayor's Conrt, upon which your attachment
is founded, states that she is sued as reigning Sovereign of Portugal.]
That is not properly before the Court; nor is the affidavit really the
foundation of the attachment : it is merely required to protect the
Court below from acting on a frivolous suggestion. The fact of the oath
need not be averred in a plea of foreign attachment ; Banks v. Self.(a)
There is at least enough doubt to induce the Court not to prohibit with-
out requiring a declaration in prohibition.

Sir F. Thenger and Bovill^ for the Queen of Portugal, oontriL.—
This is a stronger case than Wadsworth v. Queen of Spain, ^nte, p.
171, because it appears that here the original cause of action arose en-
tirely in Portugal ; the money, in respect of which the plaintiff sues,
never was in England. [Lord Campbell, C. J. — The fund attached
would appear to belong to the Queen of Portugal in the same character
as that in which she is a debtor, if at all.] That is undoubtedly so.
Assuming, on the grounds urged in Wadsworth v. Queen of Spain, that
the action does not lie against the Queen of Portugal, it does appear
that the Lord Mayor's Court has ^exceeded its jurisdiction. The

*202]

object of the afttachment is to compel a purty to appear in a cause

which is not within the competence of that Court. It is said that the
garnishee ought to have pleaded to the jurisdiction : but, even if that
were so, the Court will not, on account of his not having so pleaded,
allow this action to go on against the Queen of Portugal. And, further,
he was not bound to plead to the jurisdiction : as regards himself, the
only question is whether he is indebted to the defendant : he may be
entirely ignorant of the nature of the plaintiflTs claim on the defendant.
It may be questionable whether the dictum in Masters v. Lewis, 1 Ld.
Raym. 5C, be correct, that <« garnishment cannot be, but where the
garnishee is liable to the action of the defendant ; for the garnishee
may plead all things that the defendant might have pleaded." [Lord
Campbell, C. J. — It is the dictum of no less a Judge than Lord Holt.
WiOHTMAN, J. — And it seems very reasonable. Lord Campbbll, C. J. —
The garnishee may in some cases know what the plaintiff's claim is.
WiOHTMAN J. — It is said that the garnishee may plead that he has no
money of defendant in hand, « or other special matter "{bj] Supposing
him to have that right, his abstaining from the exercise of it cannot
oust the original debtor from the right of denying the jurisdiction.
Again, the Court, even on the suggestion of a stranger, will prohibit
the inferior Court from exceeding its jurisdiction ; Com. Dig. ProhHri-
tton, (E), 2 Inst. 707. It is true that, in ordinary cases, a party sued
appears, before applying for a prohibition ; Sparks v. Wood, 6 Mod. 146:
and a plea to the jurisdiction may be generally proper ; Lucking v.

(a) Note to Harington 9, MMmorrii, 5 Taunt S84

(b) Bohnn's PriTUegia Londini, 266 (Sd ad.).

17 ADOLPHUS ft ELLIS. N. 8. 202

Denning, 1 Salk. 201 : but an ^appearance and plea would be

[*208

aUord and contradictory in the present case, where the objec-
tion is that the defendant cannot be called upon to appear at all. In a
plea to the jurisdiction, the defendant mast appear in person ; 6 Bac.
Abr. 235 (7th ed.), tit. PUoi and Pleadings (E) 2 ; now, where the party
is not bound to appear, this Court will prohibit the enforcing process to
compel appearance; Yaughan^v. Evans, 2 Ld. Raym. 1408. It is true
that, by instituting proceedings in an English Court, the Queen of Por-
tngal might make herself liable to answer a bill relating to those pro-
ceedings : even so, however, she would not be liable to answer another
party in a different matter ; The Duke of Brunswick v. The King of
Hanover, 6 Beav. 1, 88 ; S. C. 2 H. L. Ca. 1. But, iji fact, she has
never been a party to this proceeding at all. The privilege of a for
eign sovereign, like that of ambassadors, rests on the law of nations :
Stat. 7 Ann. c. 12, was only declaratory, and was passed to conciliate
the Czar; Triquet v. Bath, 3 Burr. 1478, 1480. Suppose the Queen
instituted proceedings against the garnishee in Portugal for the debt :
could he set up the English attachment as a defence 7 [Lord Camp-
BJBLL, C. J. — That is a question which we cannot" answer.]

Lord Campbell, C. J. — We will take time to consider our judgment,
fiat, without prejudice to any point which has been argued in this case,
I must express very great regret that the action should have been
brought. I have no hesitation in saying that such actions do not lie ;
and I am very ^orry to find that this has been persisted in. The only
qaestion is as to *the proper mode of stopping it, whether by a ri^o^j
plea in the Court below or by prohibition. Our. adv. vtdt. ^

Lord Campbell, C. J., in this term (May 28th), delivered the judg-
ment of the Court in both cases.

DE HABER t^. The QUEEN OF PORTUGAL.

We are of opinion that the rule for a prohibition in this case ought to
be made absolute.

The plaintiff has commenced an action of debt in the Court of the
Lord Mayor of London against «<^^r most faithful Majesty Dofia
Maria da Gloria, Queen of Portugal, as reigning Sovereign and supreme
head of the nation of Portugal :" and, by an aflSdavit laid before us, it
appears that the plaintiff's alleged cause of action is in respect of a sum
of Portuguese money equivalent to 12,1362. sterling, which he had in
the hands of one Francisco Ferreiri of Lisbon, banker, at the period
when Don Miguel, pretending to the Crown of Portugal, was driven out
of that country, and which was by the said Francisco Ferreiri paid over
to the Portuguese (Government now represented by the royal defendant.
The plaintiff, having entered his plaint, proceeded according to the
custom of foreign attachment in the city of London, as if the defendant

*205]

204 DE HABER v. QUEEN OF PORTUGAL. T. T. 1861.

were subject to the jarisdiction of the Lord Mayor's Court and the caiue
of action had arisen within that jurisdiction ; and he sued out a som*
mons for the defendant to appear and answer the plaintiff in the plea
aforesaid. A return being made bj the Serjeant at Mace, that the said
defendant had nothing within the said city or liberties thereof, wherebj
*she can be summoned, nor was to be found within the same,(a)
the plaintiff swore an aflSdavit, in which he stated that the defend-
ant, «as reigning Sovereign and as supreme head of the nation of
Portugal, is justly and truly indebted to him" <<in the sum of 12,136{.,
for money had and received by her said Majesty, Dofia Maria da Gloria,
Queen of Portugal, for and on behalf of the said nation of Portugal, for
the use of thi^ deponent, and for money taken by Her said Majesty
Doiia Maria da Gloria, Queen of Portugal, by and on behalf of the said
nation of Portugal, from the deponent's banker, with interest thereon."
The defendant being solemnly called, and not appearing before the
Lord Mayor, the plaintiff alleged, by his attorney, that Senhor Gail-
heme Candida Xavier De Brito, of the city of London, the garnishee,
had money, goods, and effects of the defendant in his hands, and prayed
process according to tfie said custom to attach the said defendant by the
said money, goods, and effects in the hands of the garnishee as afore-
said, so that the defendant may appear in the Lord Mayor's Court to
answer the plaintiff in the plea aforesaid. Thereupon the Judge pre-
siding in the Court awarded an attachment against the defendant as
prayed, directed to the Serjeant at mace, which that officer immediately
executed, leaving with the garnishee a notice in the terms following.

" Senhor Guilherne Candida Xavier De Brito. 28th March, 1851.
*90fil * *Take notice that, by virtue of an action entered in the Lord
^ Mayor's Court, London, against Her most faithful Majesty Dofia
Maria da Gloria, Queen of Portugal, as reigning Sovereign and as
supreme head of the nation of Portugal, defendant, at the suit of
Maurice de Haber, plaintiff, in a plea of a debt upon demand of 24,000/.,
I do attach all such moneys, goods, and effects as you now have, or which
hereafter shall come into your hands or custody, of the said defendant,
to answer the said plaintiff in th« plea aforesaid : And that you are not
to part with such moneys, goods, or effects without license of the said
Court. G. T. R. Rbynal, plaintiff's attorney,

Lord Mayor's Court Office, Old Jewry.
J. Z. GoRB, Serjeant at Mace."

On the second day of Easter term this rule for a prohibition 'was
applied for and obtained on behalf of the Queen of Portugal.

Cause* being shown against this rule and a similar rule in a similar

(a) The proceedings in the Lord Mayor's Court (except the affldayiti of debt in the two snit«»
and the notices of attAcbment in the last) were not ezpreselj deposed to : but it waa assuned in
the argument that the regular course of foreign attachment had been punned.

17 ADOLPHUS & ELUS. N. 8. 206

action brought against Her most faithful Majesty the Queen of Spain,
various questions respecting foreign attachment were discussed, which
we do not feel it necessary to determine, ds we think that, upon simple
and clear grounds, there has been an excess of jurisdiction by the Court
of the Lord Mayor of London, against which we are bound to grant a
prohibition at the prayer of the defendant.

In the first place, it is quite certain, upon general principles, and
upon the authority of the case of The *Duke of Brunswick v. r4c9AiT
!nie King of Hanover, 2 H. L. Oa. l,(a) recently decided in the ^
House of Lords, that an action cannot be maintained in any English
Court against a fofeign potentate, for anything done or omitted to be
done by him in his public capacity as representative of the nation of
which he is the head ; and that no English Court has jurisdiction to
entertain any complaints agaipst him in that capacity. Redress for
such complaints affecting a British subject is only to be obtained by the
laws and tribunals of the country which the foreign potentate rules, or
by the representations, remonstrances, or acts of the British Govern-
ment. To cite a foreign potentate in a municipal court, for any com-
plaint against him in his public capacity, is cont!k*ary to the law of
nations, and an insult which he is entitled to resent.

The statute 7 Ann. c. 12, passed on the arrest of the Russian ambas-
sador, to appease the Czar, has always been said to be merely declaratory
of the law of nations, recognised and enforced by our municipal law ;
and it provides(fr) that all process, whereby the person of any ambas-
sador, or of his domestic servant, may be arrested, or hUgood^ distrained
CT ui^dy shall be utterly null and void. On the occasion of the outrage
which gave rise to the statute, Lord Holt was present as a privy, coun-
cillor to advise the Government as to the fit steps to be taken ; and,
with his sanction, seventeen persons, who had been concerned in arrest-
ing the ambassador, were committed to prison that they might be pro-
secQted by information at the suit of the Attorney-General. Can we
doubt that, in the ^opinion of that great Judge, the Sovereign r^^oAo
himself would have been considered entitled to the same protection, ^
immunity^ and privilege as the minister who represents him ?

Let us see then what has been done by the Lord Mayor of London.
On a plaint being entered in his Court against «« Doiia Maria da Gloria,
as reigning Sovereign and supreme head of the nation of Portugal,"
for what she had done <«for i^d on behalf of the said nation,*' he sum-
mons her to appear before him ; and, she being solemnly called and.
making default, he, with full knowledge that she was so sued, issues an*
attachment against her for this default, to compel her to appear. Under
this attachment, all her money, goods, and effects within the City and
liberties of London are ordered to be seized ; if she does not obey the

(a) Affirming the doorte of the MMtor of tho RoUi in 8. C. 6 Boftr. I.
{b) Sect. 3.

VOL. XVII. — 19 N

208 DB HABER ». QUEEN OP PORTUGAL. T. T. 1861.

mandate within a year and a day, these funds are to be confiscated or
applied to the satisfaction of the plaintiff's demand, without any proof
of its being justly due ; and she can only get rid of the attachment by
giving bail, to pay the sum which the plaintiff may recover, or to render
herself to prison that she may be committed to the Poultry or Giltspur
Street Compter. The attachment applies, not only to all the moneys,
goods, and effects of the Queen of Portugal then in the hands of the
garnishee, but to all that shall thereafter come into his hands. The pro-
cess is studiously framed to be applicable to property of the Queen u
«( supreme head of" the Portuguese nation. It appears from the afi-
davit that the plaintiff had entered a former plaint against the Queen
of Portugal, which, he suggested, was against her in her individosl
capacity; that, upon an attachment, the garnishee pleaded Nil habet;
Mfiq-i ^^^ ^^^^ ^P^° ^^^^ issne the "^jvry found a verdict for the gar-

^ nishee, because all the funds in the hands of the garnishee were
proved to belong to the defendant in her public capacity as Sovereign
of the dominions which she governs. Were the defendant now to plead
Nil habet, the verdict must be against him ; for the funds which he holds
belong to the defendant in the capacity in which she is sued. While
this attachment stands, should any money raised by loan, or any muni-
tions of war, purchased for the use of the Portuguese Government, be
found within the city of London or the liberties thereof, they are all
liable to be seized for the benefit of the plaintiff.

It may be right that we should mention two authorities which we have
met with in our researches upon this subject, although they were not
referred to in the argument, as they seem at variance with the ppinion
we have formed. Bynkershoek, in his treatise De Foro Legatorum, ch.
iv.,(a) discussing the question whether the goods of a sovereign prince
in a foreign state are liable to be judicially arrested or attached, says :
<« In causfi civili cum id inter privates obtineat, ubicunque arreata fre-
quentantur, ego nullus animadverto, cur non idem obtinere oporteat quod
ad bona externorum Principum. Si ab arresto Principis temperemns
ob sanctitatem personn, quis bona Principis in alieno imperio sequ^ aancia
esse dixerit ? usu gentium invaluit, ut bona, qu» Princeps in altertss
ditione sibi comparavit, sive hssreditatis, vel quo alio titulo acqaisivit,
perinde habeantur, ac'bona privatorum, nee min&s, quam hsec, subjici-
antur oneribus et tributis.*' But this author, who is well known to have
an antipathy to crowned heads and to nipnarchical government, admits
^o-iM that other jurists differ from *faim; and he goes on to cite a

-^ decision in his own country which completely overturns his doc-
trine, if' In the year 1668, certain private creditors of the King of
Spain arrested three ships of war of that kingdom, which had entered
the port of Flushing, that the pursuers might thus obtain satisfaction
for their debt, the King of Spain being cited to appear at a certain day

(a) Op«ra, ToL i, p. 161. Ujdw, 1707, feL

17 ADOLPHUS ft ELLIS. N. 8. )210

before the Jadgee of the Oourt of Flashing : but, upon the remonstraiiee
of the Spanish ambassador, the States Oenera], by a decree of 12th
December, 1668, ordered the authorities of the province of Zealand to
liberate the Spanish ships of war, and to allow them freely to depart,
8t the same time directing a representation to be made to the Spanish
Government to do justice to the Dutch citizens, lest it should be neeea-
ssrj to rescfrt to reprisals." And there can be no doubt that, according
to the law of nations, repri»al» would be the appropriate remedy, not
a jadioial citation before a municipal Court, to be enforced by seisuiie
of national property.

In Selden'e Table Talk (Singer's Edition, p. 108,(a) ) there are the
following words, supposed to be spoken by that profound lawyer himself.
« The King of Spain was outlawed in Westminster Hall, I being of
eoansel against him. A merchant had recovered costs against him in
a anit, which because he could not get, we advised to have him outlawed
' fornot appearing, and so he was. As soon as Gondomar heard that be
presently sent the money, by reason, if his master had been outlawed,
he could not have the benefit of the law, which would have been vei^
prejudicial, there being then many suits depending betwixt the King of
Spain, and our English merchants."

*The fact here stated seems to have been credited by Lord r^n-i-i
Chancellor Thurlow, who, in Nabob of the Oamatic v. East India '-
Company, 1 Yes. Jun. 871, 886, note (64), « observed, that the King
of Spain had been once outlawed by Selden's advice to prevent him from
taking advantage of his suit." But he adds: «the outlawry waa bad
•enough." Others have doubted whether the King of Spain ever was
outlawed in the manner supposed. Legge, in his Law of Outlawry,(A)
p. 12, alluding to it, says ; «< This was a very strange case if for costs
only, as it does not seem to be warrantable by law."

Such an extract fi^om an amusing book of anecdotes cannot be con-
aidered any authority for the position that a sovereign prince may be
sued as such in our municipal Courts, and that property belonging to
him in his public capacity may be seised to compel an appearance.
The statement is in no way authenticated by Selden himself, and 'is
merely a loose report of what is supposed to have fallen from him m
conversation. It cannot be accurate ; as the outlawry is first supposed
to have been for non-payment of eosU, and, secondly, for not appoaring :
and, according to the usual practice, it could not have been in West-
minster Hall. We have caused search to be made for the record ; but
it is not forthcoming. There may de facto be judgment of outlawry
against any sovereign prince who does not appear after being proclaimed
the requisite number of timea at the Ooonty Court or Court of Hustings,
no inquiry being made whether the defendant be an alien or a natiuial

(a) Tit Law, { 8.

ill DE HABBR 9. QUEEN OF PORTUGAL. T. T. 1851.

born Englishman, an emperor or a peasant : bat this proceeding is
^rt^9-| clearly irregalar; and all concerned m it *would be liable to

''-' punishment. Till stat. 2 & 3 W. 4, c. 39, sect. 5, there could have
been no outlawry except upon a capias^ which could not be lavfally
sued out against a peer or member of the House of Commons, moch less
against a sovereign prince. After outlawry, the outlaw is to be seised
wherever he can be found, and imprisoned in salv& et arctfi ca8todi&;
all his personal property is forfeited to the Queen of England ; and she
is entitled to the profits of all his lands. Such a proceeding is mani-
festly inapplicable to a foreign sovereign, who must be supposed to be
in his own dominions, and, if he were in England, could not be so sued
without a breach of the law of nations and of our municipal law. The
suits alleged to have been pending between the King of Spain and the
English merchants, if there were any, were probably actions brought
by him on bills of exchange, or arising out of some of the commer-
cial transactions in which his Majesty was then engaged. For such
matters a foreign sovereign might and may still sue in our Courts of
justice : but no authority can be found for his being sued here as a
sovereign.

In the case of The Prince Frederick, before Lord Stowell as Judge
of the Admiralty, the same view of the subject was taken by that
greatest of jurists, although, from a compromise, no formal judgment
was pronounced. There a Dutch ship of war had been saved from ship-
wreck by English sailors, who libelled her for the salvage. Objection
being made that the Court had no jurisdiction, a distinction was
attempted, that the salvors were not suing the King of the Netherlands,
*Q1 ^1 ^"^ ^^^^' being in possession of, and having a *lien upon, a ship
^ which they have saved, the proceeding might be considered ta
rem. But Lord Stowell saw such insuperable difficulties in judicially
assessing the amount of salvage, the payment of which was to be enforced
by sale, that he caused a representation to be made on the subject to
the Dutch government, who very honourably consented to bis dis-
posing of the matter as an arbitrator. The case of The Prince Fre-
derick is not in print ; but we had an account of it from the Queen's
advocate.

Notwithstanding the dictum of Bynkershoek, and the outlawry of
the King of Spain, supposed to be related by Selden, we cannot doubt
that the awarding of the attachment in the present case by the Lord
Mayor's Court was an excess of jurisdiction, on the ground that the
defendant is sued as a foreign potentate.

Therefore, the circumstance that the cause of action, if there were
any, arose out of the jurisdiction of the Lord Mayor's Court, need not
be relied upon. Nevertheless, after the strong assertions at the bar
that this is immaterial where the defendant does not appear, we think
it right to say that, having examined the authorities, we entertain no

17 ADOLPHUS & ELLIS. N. 8. 21S

joobt that the process of foreign attachment can only be duly resorted
to where the cause of action arose within the jurisdiction of the Court
from which it issues. The garnishee is safe by paying under the judg-
ment of the Court : but the objection that the cause of action did not
arise within the jurisdiction of the Court, if properly taken, must pre-
Tail. No agreement of counsel to abstain from making the objection
can alter the law of the land, which says that an inferior Court can
odIj hold plea where the cause of action ^arises within the local ^4,014
limits to which its jurisdiction by charter or custom is confined. ^

We have now to consider whether we can grant the prohibition on
the application of the Queen of Portugal before she appears in the Lord
Major's Court. The plaintiff's counsel argue that, before she can be
heard, she must appear and put in bail, in the alternative, to pay or to
render. It would be very much to be lamented if, before doing justice
to her, we were obliged to impose a condition upon her which would be
a further indignity, and a further violation of the law of nations. If
the rule were that the application for a prohibition can only be by the
defendant after appearance, we should have had little scruple in making
this an exception to the rule. But we find it laid down in books of the
highest authority that, where the Court to which the prohibition is to
go has no jurisdiction, a prohibition may be granted upon the request
of %»tranger^ as well as of the defendant himself; 2 Inst. 607, Com.
Dig. Prohibition^ (E.). The reason is that, where an inferior Court
exceeds its jurisdiction, it is chargeable with a contempt of the Crown
as well as ja grievance to the party ; Ede v. Jackson, Fort. 845. There-
fore this Court, vested with the power of preventing all inferior Courts
I from exceeding their jurisdiction to the prejudice of the Queen or her
subjects, is bound to interfere when duly informed of such an excess
of jurisdiction. What has been done in this case by the Lord Mayor's
Court must be considered as peculiarly in contempt of the Crown, it
being an insult to an independent sovereign, giving that sovereign just
cause of complaint to the British Government, and having a r^oiic
^tendency to bring about a misunderstanding between our own ^
gracious Sovereign and her ally the Queen of Portugal.

Therefore, upon the information and complaint of the Queen of
Portugal, either as the party grieved, or as a ttranger, we think we
are bound to correct the excess of jurisdiction brought to our notice,
and to prohibit the Lord Mayor's Court from proceeding further in this
suit. Rule absolate.(a)

(a) 8«e Wettoby «. Day, 2 B. * B. 605 (B. G. L. R. toL 76.)

21» WADSWORTH v. QUEEN OF SPAIN. T. T. 1851.

WADSWORTH v. The QUEEN OF SPAIN.

This case nearly resembles that in which we have jnst given jodg-
ment, bat differs from it in two particulars. 1. Here the plaintiff's
affidavit does not expressly state that the action is brought against tbe
defendant as reigning Sovereign and supreme Head of the Spanish
nation ; and, 2. The party applying is the garnishee, after pleading
Nil habet.

The effect of the first difference is entirely done away with by the
disclosure the plaintiff makes in the affidavit of his supposed cause of
action, which is on a written instrument commonly called a Spanish
Oovernment bond in the form of a debenture entitled «< Public Debt of
SpatHj" signed by an officer of the Government of Spain as contractor,
amd purporting to have been issued under a decree of the Cortes sanc-
tioned by the Regent of Spain in the name of her daughter, the pre-
sent Queen, then a minor. It is quite clear that no one could pretend
^Ifi1 ^P^^ ^^^^ ^^ instrument to bring an ^action against the Queen
^ of Spain as a private individual, supposing that she could be
sued in the Lord Mayor's Court for a debt contracted by her in London
in her private capacity, she having by the constitutional laws of Spain
private property which would be answerable for such a debt.

There is here therefore an equal want of jurisdiction in the Lord
Mayor's Court to entertain the suit or to summon the defendant.
Nevertheless, the Lord Mayor did entertain the suit, summoned the
defendant, and, upon her making default in appearing before him, with
full knowledge of the alleged cause of action, awarded an attachment
against her, under which money due to her in her public capacity as
Sovereign of Spain was liable to be seized.

There is in this case, therefore, the same palpable excess of jurisdic-
tion pointed out in the case of the Queen of Portugal. We have only
to consider whether there is before us a proper party to pray for a pro-
hibition. The Queen of Spain does not make the complaint ; and it
is only made by the garnishee, after pleading Nil habet. The plaintiff's
counsel argue that the garnishee could only plead Nil habet ; that, if
the Queen of Spain has any privilege against being sued in the Courts
of this country, she only can take advantage of it ; that she ought to
have appeared and pleaded to the jurisdiction; that by her non-appear-
ance she must be considered as having waived her privilege ; that there
has been no excess of jurisdiction at any rate as far as the garnishee
is concerned ; that it must be presumed that the Lord Mayor's Court
will do its duty ; and that, if it decide improperly, the remedy is a
writ of error by which the record may finally be brought into this
i^tyyrj-y Court. But WO *are clearly of opinion that in a case of this
^ sort, if the garnishee comes in time, he may be heard in this
Court and a prohibition may be granted at his instance. Here there

17 ABOLFHUS A ELLIB. N. 3« 217

neither was nor coald be any personal summonB ; the defendant could
not be required to appear without a breach of the law of nations ; the.
plea to the jurisdiction could only have been pleaded by her in her
proper person ; the garnishee has an interest in getting aside an attach-
ment improperly executed if he has funds of the defendant in his
hands ; for, although he would be discharged according to the law of
this country by payment under the judgment of the Lord Mayor'u
Court, the law of Spain may not recognise such a payment ; he is pre-
vented from applying the funds in payment of a debt which may after-
wards become due to himself from the Spanish Government : and at all
events he is «<a stranger" on whose information and complaint of the
excess of jurisdiction in contempt of the Grown we should be bound to
correct it by a prohibition. If the record fully disclosed the error into
which the inferior Court has fallen, after there has been an excess of
jurisdiction, a prohibition and not a writ of error is the appropriate
remedy.

'ELas the garnishee then, by pleading Nil habet, disqualified himself
from coming before us to pray for the prohibition 7 Wo think not. He
was bound to put in a plea, that he might avoid judgment; and, before
the trial of the issue upon that plea, and within a reasonable time after
pleading it, he applies for a prohibition to prevent further proceedings
in an action which ought never to have been commenced. Hoc statu,,
a stranger might successfully apply for a prohibition ; and, surely, sa
may the garnishee.

*To show that a prohibition could not be applied for till the

[*218

objection relied upon was specifically made in the inferior Court
and overruled, the plaintiff *s counsel mainly relied upon the two case^
of Home v. Lord Camden, 2 H. Bl. 583, and Chesterton v. Farlar, 7
A. & E. 713 (E. G. L. B. vol. 84). In the- former case it was held hj
the House of Lords, m conformity with the advice of all the Judges,
that, whether the misinterpretation by an inferidr Court of a statute,
the consideration of which is confessed to be within its jurisdiction^ be i^
ground for a prohibition, or be not rather a matter of appeal, in sucli^
case a prohibition will not lie unless it be made to appear to the superior
Court that the party applying for the prohibition has in- the inferior
Court alleged the grounds for a contrary interpretation of the statute
on which he appears for the prohibition, and that the inferior Court has
proceeded notwithstanding such allegation. But the opinion of the
Judges, delivered by Lord Chief Justice Eyre, on which the House
acted, was founded entirely upon the reason that the inferior Court (the
Commissioners of Prizes) had committed no excess of jurisdiction, and
therefore that a misconstruction of the Act of parliament was rather
the subject of an appeal than of a prohibition. He says :{a) «( The
complaint made to the temporal Court is not that the sentence is wrong,

(a) 2 H. Bi MS.

218 WADSWORTH v. QUEEN OP SPAIN. T. T. 1851.

which indeed the temporal Court had no jnrisdiction to correct if it
were wrong, nor is the complaint that the sentence was an excess of
jurisdiction, or in any other respect a ground for prohibiting the Prize
Court to carry it into execution." In Chesterton v. Farlar, a party
♦91 Ql *^^^ ^^^ appealed from the Arches Court to the Queen in
^ Council, the appeal being referred by her to the Judicial Com-
mittee, while the appeal was pending and before any proceeding had
been taken in that Court, mored the Court of Queen's Bench for a pro-
hibition, on the ground that a church rate on which the suit had been
commenced in the Consistory Court was bad, as appeared by the plead-
ings there. The Court of Queen's Bench (I think very properly) held
that a prohibition could not be granted on this ground, the eatue being
before a Court the jurUdietion of which was not deniedj no erroneoui
proceeding having been taken there^ and this Court refusing to presume
that the Judicial Committee would act incorrectly. Lord Denman,
having pointed out that the Court before which the cause then was had
jurisdiction over it, and had not fallen into any mistake, adds : «< If, in
the progress of the cause, the" " Court should commit any error, if
they do anything against common law or Acts of parliament, we may
then interfere." But, in the case at bar, the inferior Court had no
jurisdiction to entertain the cause ; and, before the prohibition was
applied for, the inferior Court bad committed a manifest error and had
clearly exceeded its jurisdiction by summoning the Queen of Spain, and
issuing an attachment against her.

Judicial procedure in England would have been liable to great reproach
had it not afforded a prompt and effectual remedy at once to put an end
to actions brought in perversion of the ancient and laudable custom of
foreign attachment in the city of London, and in violation of the uni-
versal law by which all civilized nations are bound. It gives us great
*9901 ^^^^^^^^^^^i^y therefore, to be able, ^consistently with the deci-
■' sions of our predecessors, and the principles by which they have
been guided, to grant the relief which is prayed. If we had entertained
any grave doubt upon the subject we should have directed the applicant
to declare in prohibition : but, being clearly of opinion that there is an
excess of jurisdiction in the Court below, of which he is entitled to
complain before us, it is our duty simply to make the rule absolute.

Rule absolute.

17 ADOLPHUS & ELLIS. N. 8. 220

The QUEEN «. HASLAM and HOWARTH. May SI.

The oeeupiera (not being owners) of premises were rated for them to the poor as for "Chemieal
works, lands and baildings." Part of the works consisted of ''ehambers" used for the manafao-
tBTB of snlpharic acid. The chambers were vessels of sheet lead, weighing each several tons,
13 feet high, 13 wide, and from 40 to 60 long; the lower part forming a dish 12 inches deep,
in which the acid was deposited ; the upper shotting down upon the lower and receiving vapour.
They stood in the open air; each was surrounded by walls of strong masonry forming aa
oblong, which was filled up with sand; and the chamber rested upon the sand, being also
supported by and riveted to a ft'ame of wood which ran round the tops of the walls. The
wooden frame was in some instances laid in mortar on the tops of the walls ; in others 11
merely rested upon them. At each end of the chamber was a pipe to convey gases and vapours
in and out; each pipe was fixed, at ite eitremity, into buildings which were part of the free-
hold. Where the pipes entered and passed out of the chamber, the lead of the chamber wai
beaten round the pipe, and the insertion was made vapour-tight by luting. Steam (necessary
to the mannfactnre) was conveyed into the chamber, also by a pipe, which passed from the
boiler and was riveto^ to the wooden frame-work. The boiler was affiled to the freehold, and
the pipe to the boiler. Every pipe might be removed by taking it to pieces, or by unfastening
the rivete, without injury to the freehold : and then the chamber would rest on the ground by
its mere weight, and might, with sufficient force, be lifted from the soil without displacing anj
part of the freehold. In a case stated for the opinion of this Court, the Sessions found that the
ehambers were attached to the freehold in manner before mentioned, but not afilxed thereto.
Held, that, assuming the chambers not to be so annexed as to form part of the freehold, yet,
being fixed maehinery, attached to buildings, and neoessarily so attached for the purpose of
being used, they were properly considered in the rate as increasing the rateable value of the
buildings : and a rate calculated on such increased value was confirmed."

On appeal against a rate for the relief of the poor of the township
of Great Bolton in the borough of *Bolton in the county of

Lancaster, the Sessions confirmed the rate, subject to the opinion

[*221

of this Court upon a special case.

The case set forth the rate appealed against, by which the appellants
were assessed at 222. 15«. 9(2. upon «< Chemical works, lands, tene-
mentff, erections, and buildings," occupied by them ; owners, Robert
Howarth's executors ; gross estimated rental, 2722. 7«. 8d. ; rateable
Talae, 2272. 17«. After stating that the appellants were in fact the
occupiers, the case proceeded as follows.

Certain chambers, hereinafter described, and which were used for
the manufacture therein of sulphuric abid, were erected in manner here-
inafter mentioned on the said lands, and were used in the occupation
of such chemical works, lands, tenements, erections, and buildings : and
the said chemical works, lands, &c., were in the said rate assessed at
an increased value in consequence and by reason of such chambers and
of the user thereof.

The case then stated that the appellants objected that they were
assessed too highly, and were not liable by law to be rated or assessed
in the said rate, either on account of the chambers, or for any increased
value of the said chemical works, lands, &c., arising from the use of the
said chambers. The respondents maintained the contrary. It was
farther stated that the annual rateable value of the said chemical works,
lands, &c., exclusive of the increased value arising from the chambers,

VOL. XVII. — 20

221 BBGINA v. HASLAM. T. T. 1851.

was 1622. Us. 5d. ; inclusive of such value, 2272. lis. The residue of
the case was as follows.

The said chambers are constructed in manner following. The said
chambers are placed upon the land in the open air, and are not in any
♦2291 ^*y enclosed in or *covered by any building or erection. The
"-' chambers occupy large spaces of ground : their respective lengths
vary from 40 feet to 60 feet : each of them is 13 feet high ; and the
average width of each is about 13 feet. Each of such chambers is a
very large vessel of sheet lead, weighing several tons, and is com-
posed of two parts; the lower part is a dish about 12 inches deep, in
which the acid is deposited ; and the upper part shuts down on the lower
and receives the vapour.

The mode of erecting such chamber is as follows. In some instances
the soil has been excavated for the purpose of erecting foundation vails
of strong masonry ; in others these walls stand upon the natural level
of the ground. The walls are built in the shape of an oblong ; and the
inside is filled with sand and other materials to a level with the top of
the walls. The chamber rests on the sand ; a sill, composed of four
strong beams of wood, runs along the top of the walls, on which is fixed
a frame work of wood which encompasses the chamber and is used for
its support. The chamber is attached to the frame work by leaden
rivets. In some of the more ancient chambers the sill is pluced on
mortar which has been spread on the top of walls for the purpose of
preserving the level ; but in the more modern instances the sill rests
on the top of the walls without the assistance or aid of mortar or any
other such substance.

At each end of the chamber there is a pipe for the purpose of conveying
the gases and vapours into and out of the chamber : both are at their
extremities fixed into buildings which are part of the freehold ; but the
^29Q-| pipe which conveys the gas and vapour into the ^chamber enters the
^ chamber in the following manner. A circular hole is cut into the
chamber, through which the pipe is inserted : and the lead of the chamber
is then beaten round the pipe : the whole is rendered vapour tight by
means of a luting of white*lead and other materials. The pipe which
conveys the vapour from the chamber is fastened to the chamber in the
same manner ; and it consists of several short pieces of pipe which slide
into each other like the joints of a telescope, and are rendered vapour
tight by means of luting. It is necessary in the process of manufacture
to convey steam into the chamber ; and it is conveyed from the boiler
by means of a pipe which is attached to the frame work before men-
tioned by leaden rivets. The boiler is affixed to the freehold ; and the
pipe at that extremity is affixed to the boiler. That pipe may be
removed at pleasure, without injury to the freehold, by unfastening the
rivets which attach it to the frame work ; and the pipes conveying the
gases into and from the chambers may also be removed at pleasure, and

17 ADOLPHUS & ELLIS. N. S. 228

* !■■■ ^ .■■.■■ ■

without iojuiiDg the freehold, hj withdrawing the pieces of which the
pipes are composed. When these pipes are so withdrawn, the chamber
rests on the ground by its mere weight, and, if sufficient force were
used, might be lifted from the soil without dbplacing any part of the
freehold.

The chambers are attached in manner before mentioned to the free-
hold, bat are not affixed thereto.

It was proved that personal property was not rated in the said town-
ship to the relief of the poor.

Upon the above facts, the Court found that the said chambers were
attaehed in manner before mentioned to *the freehold, biit were r^cooA
not affixed thereto : and the Conrt confirmed the rate, snbject to *-
the opinion of the Court of Queen's Bench. The questions for the opi-
nion of the Court are :

1. Whether, on the beforo^mentioned statement of the building and
annexation, the said chambers are affixed to the freehold*

i. Whether,' if the said chambers are not, under the said circum-
stances of building and annexation, affixed to the freehold, the
land and buildings are liable to be rated at a greater amount by
reason of the use of thoqe chambers on the land.

If the opinion of this Comrt should be in the affirmative on either ques«
tion, the rate was to be confirmed ; if to the contrary on both questions,
the rateable value to be reduced to 1622. lis. 5(2., and the rate to 16L
St. 3i. -

The case was now argued.(a)

SaUj in support of the order of Sessions. — As to the first question :
the ease finds that the chambers are <( attached*' to the freehold but
not «( affixed thereto." [Colbridgb, J. — This question seems to be one
of &ct. Pattbson, J. — I do not know what is meant by << attached"
to the freehold, but not << affixed." Whether they are really let into
the land or not, would be a question of fact ; whether they would go to
the heir or executor, would be a point of law.] The facts found show that
the chambers are affixed to the freehold. But assuming that they are
not, the premises *are rateable in respect of them, because r^noc
they make the occupation more valuable. This principle of ^
rating was established by Rex v. St. Nicholas, Gloucester, Cald. 262,
S. C. 1 T. R. 723, note (a),(i) and Rex v. Hogg, 1 T. R. 721. [Colb-
XIUOB, J. — In those cases there was, in any view of the question, some
rateable subject.] So there is here ; the foundation walls, the boiler,
and the pipe serving as a chimney. Among the later cases are Rex v.
The Birmingham k Stafibrdshire Oas Light Company, 6 A. & E. 684
(£. C. L. R. vol. 38)^ (where the word <« attached*^ occurs in the judg«
ment), Begina v. Guest, 7 A. fc B. 961 (E. C. L. R. vol. 84), and Re-

(a) Before Pattenon, Coleridge, and Brie, Ji. Lord Campbell, C. J., had left the Cnnrt
(6) 8e« Begiaa ew Lekh, 1 & 4 B. 121 (B. G. L. B. voL 72), Eesina «. MonriMO, 1 1. *
B.1M

226 REGINA v. HASLAM. T. T. 1851.

gina V. Southampton Dock Gompanj, 14 Q. B. 687 (E. C. L. R. vol.
68). It is true that part of this machinery might be removed without
disturbing anything which is fixed to the freehold; that is the case
also with a crane or a steam-engine; but the severance would make the
whole useless. The appellants are not owners but they are occupiers
of the land ; and the use of this machinery is a mode of enjoying the
occupation, not the freehold. If they assigned their chemical works,
the entire subject-matter of this rate would pass by their assignment.
The premises, if let for carrying on chemical works with this m»>
chinery, would bring an advanced rent.

Cowling^ cdntri. — The first point is expressly decided by the Ses-
sions. [Patteson, J. — They put a question to us upon it : but, if this
point were the material one, we should perhaps refer it back to the
Sessions.] As to the second point : the appellants raise no question
of form, and will consider the rate as laid upon land increased in value
^tync-i ^7 machinery. Then, the chambers *are neither literally nor
\ substantially fixtures. They are rather stock in trade than any-
thing forming part of << lands" within the meaning of the Poor laws.
The furnaces and other buildings are rateable ; but the chambers are
only receptacles for the vapour and steam carried in by the pipes, with
dishes to contain the acid. The rolling stock of a railway might as
well be deemed fixtures. The chambers, if of a smaller size, might be
held by manual strength to receive the vapour; and weight merely
cannot make them fixtures; a ship is but a personal chattel. The
pipes merely connect them with other machinery ; they do not incorpo-
rate them with the land or walls. To be rateable upon the principle
secondly relied upon, they ought, for the time at .least, to be part of
the Und. The case does not show that they have ever been rented by
a. tenant. [Patteson, J. — If the occupiers underlet the works they
would get a higher rent on account of these additions.] So a house lets
for more money if furnished. These chambers are merely conveniences
which the occupier of the works might from time to time add or remove
as his business increased or diminished. [Colbribge, J. — The case
does not state who erected them.] It is defective in that, and perhaps
ought to be restated. As to the cases cited for the appellants. In Rex
V. St. Nicholas, Gloucester, 1 T. R. 728, note (a), S. C. Cald. 262, the
weighing machine had the character of a fixture ; it had always belonged
to the house ; and it was considered by Lord Mansfield as annexed to
the freehold. In Rex v. Hogg, 1 T. R. 721, the carding engine was
considered as part of the house. The language of Lord Denman in Rex
V. The Birmingham k Staffordshire Gus Light Company, 6 A. & E. 644
Moni (^' ^* ^* ^* ^^^' ^^)y I'^liod *upon by the respondents, is cer-
^ tainly strong ; but there, as appears by the statement of the
case, the steam-engines and other machinery were fixed to the land
and buildings. In Regina v. Guest, 7 A. & E. 961 (E. C. L. R. vol.

17 ADOLPHUS ft ELLIS. N. S. 227

34), the judgment is very generally expressed ; and the attention of
the Coart is directed chiefly to the exclusion of certain tests of ratea-
bility. A literal application of the language in this and the last pre-
ceding case would authorise rating furnished houses in respect of the
furaitare. In Rex v. Bradford, 4 M. ft S. 817, the privilege of the
canteen, which enhanced the value of the house, waa treated as a thing
appurtenant to and not to be divided from it. In Regina v. Southamp-
ton Dock Company, the cranes, steam-engines, and other fixed plant,
were not only ponderous, but incorporated with the freehold. Here
the subject of rate is a thing detached, a mere utensil, and not such a
fixture as the Courts have allowed to be taken into consideration in es-
timating rateable value. Cur. adv. vuU.

Patteson, J., on a subsequent day of the term (June 11th), delivered
the judgment of the Court.

We do not think it necessary in this case to determine whether the
chambers erected on the appellants' premises are or are not annexed to
the freehold, which is rather a question of fact for the Court of Quar-
ter Sessions to find than for us to decide : because we are of opinion
that, according to the principle laid down in the various cases on this
subject, the rateable value of the premises is undoubtedly increased by
the use of *tho8e chambers. In Rex v. The Proprietors of the r^tono
Liverpool Exchange, 1 A. ft E. 466 (E. C. L. R. vol. 28), the ^
Court, after citing several previous decisions, say : <« These cases esta-
blish the principle, that the advantages attendant upon a building,
either in respect of its situation or the mode of its occupation, are to
be taken into the account in estimating its rateable annual value,
wherever those advantages would enable the owner of the building to
let it at a higher rent than it would otherwise fetch." And again, in
Regina v. Gueflt, 7 A. ft E. 956 (E. C. L. R. vol. 84), the Court state
the general principle to be, «« that real property ought to be rated ac-
cording to its actual value, as combined with the machinery attached
to it, without considering whether the machinery be real or personal
property, so as to be liable to distress or seizure under a fieri facias, or
whether it would descend to the heir or executor, or belong, at the ex-
piration of a lease, to landlord or tenant:" and the Court referred to
Rex V. Birmingham ft Staffordshire Gas Light Company, 6 A. ft E. 634
(£. C. L« R* vol. S3), where the same principle was laid down. All
these cases have lately been brought before the Court, and recognised
as well decided, in the case of Regina v. Southampton Dock Company.
Indeed, on the argument in the present case, the attempt was rather
to show that the chambers did not come within the principle so laid
down than to attack the principle itself; and it was urged that the
chambers were rather of the nature of movable utensils or machines,
or of furniture in a dwelling-house, than of fixtures. It is, however,
plain from the facts stated that they are used as part of the fixed ma^

228 REOINA v. HA8LAM. T. T. 1851.

chinery of the works, sttftcfaed to the other bnildings for the pnrpoee
♦99Q1 ^^ being so nsed, and ^necessarily so attached in the use of
^ them, although capable perhaps of being removed without injurj
to the other buildings. Nor can it be denied that, if the appellants
were to underlet the premises, thej would fetch a higher rent as they
now stand, with these chambers upon them, than they would if the
chambers were removed.

We are therefore of opinion that the rate and the order of Sessions
must be confirmed. Order of Sessions confirmed.

The QUEEN v. HELLIER. May 31.

tin Afipeal againit s eooTietlon under Um Alehoiue UMndag Ati, 9 Q, 4, o. 51, ike SMaoni
afBrmed the eoDTieUon, and ordered that the appellant shoold fortkmtk pay to fJU ntpamdtat
jtttfieev.the sum of, Ac, for costs, and, in case of default, sbonld be committed to the Hoase of
Coirection until tueh sum thavld 6e paid. Held (though oonfonnable to stat 9 G. 4, o. 61, i.
29), a bad order since stat 11 A 12 Vict o. 43, which, bj seot^ 27, enaeta that, if, on appesl
against " such conviction or order" as is there mentioned, the Sessions shall award costs, their
order shall direct the costs to be paid to the CUrk of ike peaee, to be bj him paid over to the
party entitled, and shall state witkim wAof time payment sl^all be, and that, on non-paynat
within the time, and in default of dittreee, the party may be committed for any time aeC
eaeeeeding three monthe^ unlen tht eoettf Ac, he eooner paid. For the words ** such" *' order"
apply generally to all orders of magistrates out of Sessions, and appeals againat such oidtn
(unless in cases excepted by the Act) ; and the Act (sect 3S) repesJs all statutea ineonsisteai
with it

Certiorari is taken away by stat 9 G. 4, c 61, a. 34 : bat the order was brongbt into thb Ceart
by an ex parte application of the respondents under stat 12 A 13 Vict. e. 45, s. 18, for the
purpose of having execution. The appellant had paid 10/. in part of the costs : bat, on the
order being remored, he immediately applied to a Jadge at chambers, In Taention, to stay
execution. The Judge holding himself not authorised to interfere, the execution proceeded.
In the ensaing term the appellant moved the Court to set aside the execution. Six montfai
liad then elapsed since the making of the order of sessions. Held that, the order of sessiou
being before the Court, the appellant might object to it as illegal ; that ke waa not too Uls,
having proceeded without delay after the removal : and that his right was not prejudiced by
the part-payment of costs.

The Court set aside the fi. fa., and ordered the moneys paid and levied to be refimded ; tiie
appellant undertaking to bring no action.

Pashlet, in last Easter term (May 5th), obtained a rule to show

^^oQi cause why an order of sessions, ^dismissing an appeal of Wil-

^ liam Hellier against a conviction under stat. 9 O. 4, c. 61, with

costs, should not be quashed, and the proceedings on the said order set

aside.

It appeared on affidavit that, on 80th July, 1850, the appellant, W.
Hellier, of Melcombe Regis, in Dorsetshire, innkeeper, was convicted,
under stat. 9 G. 4, c. 61, (« To regulate the granting of licenses to
keepers of inns, alehouses, and victualling-houses, in England,*') before
three justices of 'the borough of Weymouth and Melcombe Regis, in
the said county, in the penalty of lOL for a second offence against the
tenor of his license, in suffering persons of notoriously bad character
to assemble at his house : that he appealed against the conviction, and

17 ADOLPHUS k ELLIS. N. S. 280

itwM affirmed at the sessionB, holden October 15tb, 1850, without
bearing on the merits, because, as the sessions held, notice of appeal
had not been daly served within sect. 27 of the Act. The order of
. sessions, after adjudication that the appeal should be dismissed, pro-
ceeded : «« And this Court doth hereby adjudge and order that the said
W. H., the appellant, do and shall forthwith pay or cause to be paid
Qoto the said George Oulverwell Welsford, William Devenish, and Wil-
liam Bayly, the respondent justices aforesaid, or to some or one of
them, or to whomsoever they shall appoint, the sum of 242. 17s. 6<2^
being such costs as in the opinion of this Court will be sufficient to
indemnify the said justices," &c. «< And this Court doth further ad-
judge and order that, if the said W. H. shall refuse or neglect forth-
with to pay the said sum of 24L 17«. 6d., that the said W. H. shall
and he is hereby ordered to be committed to the House of Correction
of the said county of Dorset, there to remain until such sum be paid."

*0n November 19th, 1850, the appellant paid to the clerk of r^ooi
and attorney for the justices, at his office, the sum of 10{. on \
account of the costs ; and, the residue not being paid, and no effects of
defendant being found within the jurisdiction, the said clerk and attor-
ney obtained the order of Erie, J., at chambers (8th February, 1851),
to remove(a) the judgment of Quarter Sessions into this Court(i) for
the purpose of enforcing execution. Hellier then took out a summons,
returnable at Chambers, to stay proceedings on the last-mentioned
order : but, upon the hearing (February 21st) before Patteson, J., the
learned Judge dismissed the summons, being of opinion that he had no
jurisdiction. A fi. fa. was then issued and duly executed, and levy
made (March 8d, 1851) on defendant's goods for the balance of costs
awarded by the order of Sessions, and for the costs of removing that
order.

The objections to the order of sessions were that it was not framed
according to sect. 27 of stat. 11 -k 12 Vict. c. 43 (<« To facilitate the

[♦282

performance of the duties *of justices of the peace out of ses-
sions," kc.j{c) ), inasmuch as the costs were ordered io be paid

(a) Stot. 12 A 18 Viet e,*46 ("To amrad the proMdnre In Coatts of Generml and Quarter
SMriont," Jko.)f enacts, by seot 18, "That in all caiei where aoj order shall be made by any
Coort of General or Quarter Sesiions of the peace It ihall be lawftil for the Coart of Queen's
Bench, or for any Judge of that Court at chambers, either in term or Yaeation, upon the appliea-
tion of any person entitled to enforce sueh order, and upon the production of a copy of such order
under the band of the Clerk of the peace or his deputy, and upon proof of refusal or neglect to
obey such order, to order and direct such order of the Court of General or Quarter Sessions to be
leaored into the said Court of Queen's Bench, and thereupon such order shall be of the same
force and effeet, and may be enforced In the same manner, as a rule made by the said Court
of Queen's Bench ; and all the reasonable costs and charges attendant upon such application
•ad remoral shall be recorerabte in like manner as if the same were part of such order."

(b) Without certiorari : See Hawker *. Field, I Lowndes, M. A P. 600.

(e) Stat. 11 A 12 Vict c. 43, s. 27, enacts: "That after an appeal against any such conviction
or order as aforesaid," (see sect 17, et seq.), " shall be decided, if the same shall be decided In
&ro«r of the respondents," the eonrietlng JnsUoe or Jostioes, or any other Justice of the same
eounty, 40., may issno a wamat of diitrsM or eommitaon^ 4e^ ; "and if upon any MMh appaal

REGINA V. HELLIER. T. T. 1851.

it forthwith" and not at a specified day ; and were made payable to other
persons than the clerk of the peace ;(a) and the committal was until
payment of the costs. And it was contended that, although the party
complaining might not have been entitled to bring up the order for the
purpose of taking these objections, he might now take them, the order
being before the Court.

Butt and Ffooks now showed caase.-^Assuming that the convicted
party is not precluded from objecting to this order by sect. 34 of stat.
9 6. 4, c. 61 (which enacts that no conviction under that statute, nor
adjudication on appeal therefrom, << shall be quashed for want of form,
or be removed, by writ of certiorari or otherwise," into any superior
Court), yet it is too late to impeach the order of sessions when aiz
months (the time limited by stat. 18 6. 2, c. 18, s. 5, for obtaining a
certiorari) have elapsed since it was made, during which interval there
*have been two terms ; and the party has paid 101. on accoant
of the costs. [Erlb, J. — Had he any power of disputing the
order before ?] He might have refused payment. [Ekle, J. — Then
he must have gone to prison. The payment was not voluntary. And
the delay in bringing up the order is yours. Patteson, J. — As soon
as this party know that the order was removed, he applied to me to stay
the execution.] The order is not in Court as on a certiorari ; it is
merely brought up by the justices, ex parte, in furtherance of the par-
ticular remedy given them by stat. 9 0. 4, c. 61, s. 29,{b) [Goleru>qe,

•233]

the Court of Quarter Sessions shall order either party to pay oosts, such order shall direct tack
costs to be paid to the clerk of the peace of such Court, to be by him paid over to the party entitled
to the same, and shall state within what time such costs shaU be paid ; and if the same shall not be
paid within the time so limited/' and the party ordered to pay be not under recognisance to pay
them, the cleric of the peace, on application by the party entitled to such costs, shall grant a
certificate, on production of which it shall be lawful for a Justice to issue a warrant of distrees,
and of commitment, in default of distress, " for any time not exceeding three calendar months^*
nnless the costs, Ac, be sooner paid.

(a) See Regina v. Binney, 1 B. A B. 810 (E. 0. L. R. vol. 72).

(6) Stat 9 G. 4, c. 61, s. 20, enacts: "That in every case where notiee of appeal against the
judgment of any justice in or concerning the execution of this Act shall have been giVen, and
such appeal shall hare been dismissed, or the judgment so appealed against shall have been
affirmed, or such appeal shall have been abandoned, it shall be lawful for the Court to whom
tuch appeal shall have been made or intended to be made, and raoh Court is hereby required*
to a(^udge and order that the party so having appealed, or given notice of his intention to
appeal, shall pay to the justice to whom such notice shall have been given, or to whomsoever
he shall appoint, such sum, by way of coats, as shall in the opinion of such Court be sufficient ta
indemnify such justice' from all costs and charge whatsoever,'* occasioned by his having been
served with notiee of appeal ; ** and if such party shall refhse or neglect forthwith to pay such
ram, it shall be lawful for the said Court to ati^udge and order that" he ** be committed to the
oommon gaol or House of Correction, there to remain until such sum be paid ; and that in evei7
case in which the jud lament so appealed against shall be reversed, it shall be lawful for such
Court, if it shall think fit, to adjudge and order that the treararer of the county or place in and
for which such justice whose judgment shall have been so reversed shall have acted on Ite
occasion when he shall have given such judgment, shall pay to such justice, or to whomsoever
he shall appoint, such sum as shall, in the opinion of such Court, be sufficient to indemnify
rach justice from all coxts and charges whatsoever, to which such justice may have been so put;
and the said treasurer is her^'by authorised to pay the same, which shall be allowed to him in
hij ftooonnts."

17 ADOLPHUS & ELLIS. N. S. 238

J.— Can it be effectually brought *here for that parpose, if it is r^qoA
a bad order ?] If not defective on its face, it may. ^

Then, as to the order itself. The ground of objection is that stat.
9 0. 4, c. 61, s. 29, is impliedly repealed by stat. 11 & 12 Vict. c. 43,
8. 27. Bat this enactment is a provision for summary convictions and
orders generally : the former is a special protection to justices in the
particalar business of alehouse-licensing ; the latter claase does not
repeal the earlier ; nor is any intention shown to introduce a new pro-
cess in the particular case before provided for. [Golbridoe, J. — Stat.
11 & 12 Vict. c. 48, applies to a great number of Acts of Parliament ;
according to you, none of their special provisions are repealed.] The
order is sufficient under either of the statutes in question. * The pay-
ment might be made to the clerk of the peace for the justices ; and to
order payment «« forthwith" is saying <( within what time" payment
shall be.(a) [GoLBiftiDGBy J. — It is clear you have drawn your order
under the old statute.]

Peacock^ contr&, was stopped by the Court as to the point of laches.
—If the order is bad, the removal ex parte does not exempt it from ob-
jection. And it is bad, as hot conforming to stat. 11 & 12 Vict. c. 48,
s. 27. [Patteson, J. — That clause applies to <(8uch conviction or order
as aforesaid." Is this one of <tsuch" orders?] Sect. 1 of the statute
applies to summary convictions and orders gcinerally. Some sections
which follow (b) except from their provisions the cases in which special
enactments have been, made on the subject by prior ^statutes; r^c^Qf'
but there is no similar reservation in sect. 27. << Such," there, ^
applies to orders generally, and to all cases in which the sessions may
give costs on dismissal of an appeal. They have no such power unless
under some statute; and this clause applies to all not specially ex-
cepted. [CoLBRiDGB, J. — Sect. 85 makes some special exemptions, not
affecting this case ; and sect. 36 repeals, generally, all <« Acts or parts
of Acts which are inconsistent with the' provisions of this Act."] Stat.
9 G. 4, c. 61, s. 29, is so. Under that, the party liable to pay costs
might, on default, be committed till they were paid : by the present
Act the committal cannot exceed three months, and that only in default
of sufficient distress. Under the forpaer Act payment was to be made
to the justice or such person as he should appoint : under this, a publie
officer is directed to receive the costs in all cases. [Coleridge, J. — I
suppose that if the fi. fa. be set aside, and the money levied be returned,
you will be satisfied without taking further proceedings.] The appel-
lant ought to have the costs which he has been put to by the removal:
of the order. [Patteson, J. — The order was rightly brought up.
CoLBBiDGB, J. — The fi. fa. and all proceedings thereon should be- set

(a) Sm Arnold «. DimKUle, 2 B. & B. 5S0, SOI (B. C. L. K TtL n^

(6) Seeaectfl. 11, 17.' .

VOL. XVII. — 21 0 2

285 REGINA v. HELLIER T. T. 1851.

aside, and the 242. 17t. 6d. and the costs levied be refonded.] On those
terms the defendant will undertake to bring no action.

Pattbson, J. (a) — The proceeding to enforce an order, nnder stat. 12
k 18 Vict. c. 45, s. 18, is given «« upon the application of any person
entitled to enforce snch order." If the order is brought np, and tbe
application made, the adverse part j may object to the order itself (bat
*9^f)1 ^^^ S^ farther back), though there could have *been no certiortri.
^ The question then, upon the objection here taken, is whether
Stat. 9 O. 4, c. 61, s. 29, is repealed by stat^ 11 k 12 Vict. c. 43, b.27.
And I think we must take it to be so. The object of this Act wss to
frame a general rule ; and, though the words «8uch" conviction or order
as aforesaid are used, I think they mean any conviction or order of
magistrates haying summary jurisdiction. The intention of the Act could
not otherwise be carried into effect. Then, under this Act, the order,-
whether in favour of appellant or respondent, must, direct the payment
to be made to the clerk of the peace, and within a time specified, under
penalty of committal for any time not exceeding three calendar montbs
unless the costs be sooner paid. Sect. 86 repeals certain atatntes bj
name, and all Acts or parts of Acts inconsistent with the provisions of
this. But a clause which directs payment to the justice, and, in de&alt
of payment forthwith, authorises imprisonment till the costs be paid, is
inconsistent with the enactments of stat. 11 k 12 Vict. c. 48, s. 27, and
must therefore be considered as no longer in force. The only question
then is, whether it is now too late to impeach the validity of the order.
There is nothiiig to disable this party from so doing, except that he has
paid 10^ of the original costs. But the order was not removed into
this Court till February « 8th, when he had no opportunity of contesting
it but at chambers ; and there I thought I could not interpose, and left
the party to his remedy in this Court ; indeed the whole matter was not
then before me. I think he had done all he could, and was not charge-
able with laches in submitting to the fi. fa. He paid part of tbe
costs ; but it was under an order of Sessions, and under pain of being
sent to prison if he did not pay. Assuming that he might legally have
*9^71 *^^^P^^^^ ^^^ ^* ^''^'9 ^^ ^^® ^^^ ^^ suppose him so well acquainted
-* with the law that, by not having done so, he should now be
estopped.

COLBRID0E, J. — There was no laches. The only question is whether
the order of Sessions can be objected to. Certiorari does not lie ; and
the rule to bring up an order under stat. 12 k 18 Vict. c. 45, s. 18, is
obtained ex parte ; if cause could be shown against it, the matter nov
alleged would surely be good cause. Then why may not the same
ground of objection be taken on a substantive application ? Can it be
said that, if the Sessions had authorized an extravagant and illegal fine,
a fi. fa. grounded upon their order could not. be set aside here ? T^ e

(a) Lord Campbelli C. J., hmd left the Court.

17 ADOLPHUS ft ELLIS. N. 8. 237

objeetion itself appeftre to me yalid. The intention of stat. 11 k 12
Viet. e. 48, is to consolidate former Acts and laj down general rules &s
to orders of magistrates out of Sessions, and appeals to Sessions against
Bach orders, instead of the various enactments which have been made
from time to time. The regulation in sect. 27 is a general one, and at
yuiai)ce with stat. 9 O. 4, c. 61, s. 29, in the particulars which have
been pointed out; and, by sect. 86 of the later Act, statutes inconsistent
with this Act are repealed. .

EsLLE^ J. — ^This party has applied promptly enough : he could not do
80 before the order of Sessions was brought up : as soon as that was
done, he moved to stay execution. I think that stat. 9 O. 4, c. 61, s.
29, is repealed by the later Act as inconsistent with it in the several
particulars of payment to the Clerk of the peace, appointment of a time
by the order, and imprisonment for a limited period, and that only in
default of distress. *The order of Sessions, therefore, was t^ioqq
illegal ; and, it being brought here, our duty is to enforce the *-
rights of parties according to law. The illegal order was nothing ; and
our proceeding to enforce it ought to be set aside.

Bule absolute to set aside the fi. fa. and all proceedings on the
order of Sessions ; no further proceeding to be taken to enforce
the same; defendant undertaking to bring no action if the

, money paid under the fi. fa., and the 10^, be refunded within

j a fortnight.

The QX7EEN v. SOAIFE, SMITH, and ROOEE. June 2.

If the d«pot|tloii of a vitDeai on ehargo of mi SndieUible offenoe haf been rogalarly takra befon
a magiatrato, and at the time of trial nieb witaeai is dead or (tUt 11 & 12 Viet o. 42, s. 17)
10 ill as not to be able to travel, the depodtioo may be read aa eridenee against the prisoner.
So also if it bo proTod that the witness la bept away by the prisoner's proenrement

Bat sneb deposition is not admissible on the gronnd, merely, that the prosecutor, after osing
e? ery possible endeaTonr, eannot find the witness.

If proearemont of the absence be shown, and there are sereral prisoners, the deposition is otI-
denee against those only who are proved to have procored the absence.

And, where the Jodge, admitting sach evidence, left it generally to the jary, and did not point
oat that it applied only to those implicated in procoring the absence (there being some who
were not so implieated), and the latter were coaTieted, the Coort granted a new triaL

A new trial was granted on this ground in a ease of felony removed by certiorari.

This was an indictment for robbery with violence, removed by cer-
tiorari from the Hull borough sesaione, and tried before Oreeswell, J.,
at the last York assises. The prboner Smith was defended by one
counsel, and Scaife and Rooke by another. On the part of the Crown,
a deposition by one Ann Garnett was tendered in evidence. It had
been regularly taken before a magistrate, in the presence of the prisoners.
The witness did net appear at the assises ; and it was proved that due
search bad been made for her on the part of the prosecution, but that

238 RBGINA v. SCAIFE. T. T. 1861.

0Qocn ^^® ooald not be found. ^There was evidence also tbai she was
^ kept awaj by the procurement of Soiith ; but this evidence did
not implicate the other prisoners.- The reading of the deposition wts
objected to by the counsel for Smith ; but the learned Judge admitted
it, subject to the objection, being of opinion that the procurement by
Smith was proved ; and, in summing up, he left Garnett's statement,
among the other evidence, to the jury, not telling them that the deposi-
tion could affect Smith only. The jury found a verdict of Guilty against
Scaife and Rooke, and acquitted Smith. A rule nisi was obtained in
the ensuing term for a new trial, on the grounds of improper reception
of evidence, and misdirection.

ffunter now showed cause. — In^ the first place, it has been laid down,
generally, that the deposition of a witness <« in an English Court in a
cause betwixt the same parties plaintiff and defendant may be allowed
to be read to the jury, so as the party make oath that he did bis en-
deavour to find his witness, but that he could not see him nor hear of
him ;" Anonymous case in Godbolt, S26. No distinction is there made
between civil and criminal cases ; and the reason given is, <« that if the
party cannot find a witness, then he is as it were dead unto him/* It
is also said in Com. Dig., Evidence (C 4), that the deposition of a wit-
ness (though evidence! in equity) «« shall not be evidence at law, except
where the witness is dead," «' or, cannot attend by reason of sickness,
or cannot be found." And in Bull. N. P. 239, it is laid down that de-
positions t< may be read when a witness is sought and cannot be found,
*2401 ^^^ ^^^° ^^ ^^ ^^ ^^^ same ^circumstances, as to the party that is
^ to use him, as if he were dead." In 1 Taylor on Evidence, 332,
sect. 349, after referring to the dictum in Godbolt, it is said: ^«In
criminal proceedings it would seem that a similar latitude is not allow-
able, since the Judges, in Lord Moreley's Case, 6 How. St. Tri. 769,
771, 6th resolution, resolved, that the examination of a witness taken
before the coroner was not rendered admissible, on mere proof that the
witness himself could not be found after diligent search." That reso-
lution expressly referred to depositions before the coroner, at which the
prisoner might probably not have been present : and the Judges maj
have taken into charitable consideration that 4he prisoner could not
have any witness examined on oath for him. In a modern case, Begins
V. Hagan, 8 Car. & P. 167 (E. C. L. R. vol. 84), Coltman, J., refused
to admit, on behalf of the Crown, the deposition of a witness who had
gone to sea since his examination and could not be produced ; but he
received it on behalf of the prisoner, with the consent of counsel for
the Crown. This description of evidence is so likely to be often re-
quired for the purposes of justice, as well on behalf of prisoners as on
that of the Crown, that convenience as well as reason is in favour of
admitting it : and it is not excluded by the rule <« that no sueh evidence
shall be brought, that ex naturfi rei supposes still a greater evidence

17 ADOLPHUS & ELLIS. N. S. 240

[»241

belimd in the party's possefision or power ;" Bull. N. P. 298. Bii^,
secoDdly, the'admissibilitj of depositions is clear when the witness is
kept oat of the way by means or procurement of the prisoner. This
is expressly the 5th resolution in Lord Morley*s Case, 6 How. St. Tri.
770; and examinations were admitted on that ground in Henry Harri-
sons ♦Case, 12 How. St. Tr. 883, 851, 2. In Regina v. Gut-
tridge, 9 Car. ft P. 228, 471 (E. C. L. R. vol. 88), Parke, B. said :
"If it bad been proved, on the part of the prosecution, that Ellen
ConoIIy was kept out of the way by the prisoner,(a) I should have al-
lowed her deposition to have been given in evidence against them ; but
that is not proved.*" The law on this subject is stated accordingly in
1 Taylor on Ev. 884, 5, where several authorities are referred to, and
Mr. Taylor assigns as the reason for this rule, that "justice" <^ will not
permit a party to take advantage of his own wrong." In Oreen v,
Gatewick (Bull. N. P. 248), there cited from Bull. N. P., "a witness
was sworn in a trial at bar in G. B. between the same parties on the
same issue, and he was subpoenaed by the defendant to appear at a
second trial in K. B. and his charges given him, but he not appearing
person^ were admitted to swear what he swore in C. B., for the Court
said they wouid presume he was kept away by the plaintiff's practice.
This supposition was strengthened by his having been produced by the
plaintiff at the former trial." [Lord Campbell, C. J. — In the present
case, was the learned Judge satisfied that the witness had been kept out
of the way by the contrivance of Scaife and Rooke ? Coleridge, J. —
His report is : <( I received the evidence, subject to the objection, think-
ing there was evidence of the witness having been removed by the pro-
curement of Smith." Lord Campbell, C. J. — How do yon meet that ?
Conld the procurement by Smith make *the evidence admissible r^^oj^o
against Scaife T] The prisoners were shown to have acted in ^
concert.

Deartltfj contri. — The evidence of concert related to the felony, not
the procurement. [Lord Campbell, C. J. — The argument on the other
side is, that, if there be any evidence of joint acting towards the felony,
the procurement by one prisoner makes the deposition evidence against
all. CoLBRiDGB, J. — The learned Judge ought to have told the jury,
in summing np, that the deposition was not evidence against any pri-
soner but Smith. Did he make use of that evidence as against all ?]
(Hunter admitted that the learned Judge did not make any observation
confining the application of this evidence.) There is no authority for
the position that, in criminal cases, a deposition may be used as evi-
dence merely because the witness cannot be found. The only cases in

(a) Tbe trial hsd been postponed at a preTioai auiie on affldaTit stating that deponent haa
nuoD to beliera that Ellen Conolly, who shoald have been proaeentrix, was Indaoed to keep ovt
ef the way in eoiiaideration of a snm of money s;iTen her by two of the prisoners ; Regina •
GotthJge, 9 Car. A P. 22S (E. C. L. R. toL 88).

242 REGINA v. SCAIFE. T. T. 1851.

which it may be admitted, on trial of an indictment, are stated, in 2
Buss, on Cr. 889, 890 (Sd ed.), Book yu c. 4, s. S, to be, where the wit-
ness is dead, or insane, or where he is so ill that there is no probability
of his ever being able to attend, or where he has been kept awaybj
the practices of the prisoner.

Lord Campbell, C. J.— This rule must be absolute. The prisoner
Smith had resorted to a contrivance to keep the witness out of the waj;
and therefore the deposition was admissible evidence against him : bat
it was not so against the other two prisoners : and the learned Judge,
in his summing up, did not make the distinction in favour of these two.
Then, a question has been made, whether depoeitiona of *a witness who
^oAQ-} '^ ^^^ ^^^ ®^ ^^P^ away by the prisoner's contrivance *may be
-' received when the witness is not to be found. No case goes so
far ; and I should be afraid to lay down such a precedent. Beceiving
evidence of this kind is subjecting the prisoner to prejudice from, the
statements of a witness whom he has not the advantage of cross-ex-
amining at the trial.

Patteson, J. — If there was sufficient evidence that a prboner had
procured the witness's absence, that might let in the deposition as eri-
dence to be heard. But no distinction appears to have been made'be-
tween the prisoner against whom the deposition was admissible and
those who could not be affected by it.

CoLERiDas, J. — I always. understood, before the late statute, that,
if a witness was dead or insane, or kept away by the procurement of
the prisoner, his deposition was admissible, if properly taken ; but that
other absences were all under one i^tegory, and were not grounds for
admitting the evidence. The late Act (a) takes one case out of the
category, namely that of disability by sickness. But, if a mere una-
*Q4.d1 ^^^^^^^® absence of the ^witness had been sufficient excuse, that
-* provision would have been superfluous : sickness was an innocent
cause of absence, and the absence necessary. Therefore this enactment
is, negatively, a strong declaration against the admissibility of depoai-
tions on the ground here taken.

Erle, J. — There was no evidence of procurement by any prisoner
but Smith : and the mere fact that the witness could not be found was
not sufficient to make her deposition admissible.

Deartly suggested that there was a difficulty in ascertaining what

(o) Stat 11 A 12 Viot 0. 42, >. 17, after direoting how depositions shall be taken on ehuft
of any indictable offenoe, adds : " And if upon the trial of the person so aooosed as first sforetaid
it sbidl be proved by the oath or afflrmation of anj eredible witness, that any person wbos*
deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel, sad if
also it be proved that soeh deposition was taken in the presence of the person so afocused, ssd
that ho or his counsel or attorney had a full opportunity of cross-examining the wltoets, dica,
if such deposition purport to be signed by the justice by or before whom the same parporti w
have been taken, it shall be lawful to read snoh deposition as evidence in snch proaeention, with-
out further proof thereof, unless it shall be proved that sueh deposifioD was not in £aet signed bj
the justice purporfing to sign the luinie.''

17 ADOLPHUS k ELLIS. N. S. 244

role shoald be drawn up, no precedent having been foand for a new
trial in a case of felony.

Lord Campbell, 0. J. — That might have been an argument against
oar hesriog the motion.

The Court, after conferring with the Master of the Grown Office,
iDftde the Rule ab8olute.(a)

(a) The pritoaen were tried again. Aa to fbrtber proeeedingi in the onao (which did not hear
ipop the point above reported), aee Begina v. Soaife, Jone 10th, 1862, poet

The QUEEN v. The YORK, NEWCASTLE and BERWICK RaU-

way Company.

Reported, 16 Q. B. 886 (£. C. L. R. vol. 71).

♦Between PHILIP DAVIES COOKE, Plaintiff, rio..c
and L*246

Sir ROBERT HENRY CUNLIFFE, and PHILIP BRYAN DAVIES
COOKE, an infant, by Sir WILLIAM BRYAN COOKE, Baronet,
his guardian. Defendants.

IL bj wiU doTieed Iter estates to her son-in-law B. for life, remainder to her daughter F. his wife
for life, remainder to trustees to presenre oontingent remainders, remainder to the use of the
shildren of the marriage as B. and F. should Jointly appoint by deed, or as the survivor should
appoint by deed or will, and, in default of appointment, to the use of trustees for a term* of
500 years, to oommenee on the death of the survivor of B. and F., and, sobjeet thereto, to
the use of P., eldest son of B. and F., in strict settlement The trusts of the term were^
1st, on reqneet of B. and F. to raise 10,000 £. for B. and F., and 2dly, to raise for each younger
child of B. and F., any sums not exceeding lOOOZ. apiece, as B. and F. Jointly by deed, or
the survivor by deed or will, should appoint, and in default of appointment, 1000^ apiece, pay-
able after the decease of the survivor of B. and F., unless they or the survivor should appoint
the same to be raised in his or her lifetime, in which ease the term was to commenoe on such
last-mentioned appointment

F^ the wife, died, leaving B. her surviving, without having Joined in any appointment under the
will ; and leaving four sons bosides P., and a daughter. On the marriage of the daughter, B.
by deed appointed to her 1000/. payable on his decease. After this B. made his will, by which
he gave a legacy to his daughter, and to each of his other younger children bequeathed ** such
a sum of money as with" what they are entitled to under (amongst other settlements referred
to) ** the will of BL, will make up to each 8000/. :" and ** all the residue of my personal estate
and all my real estate over which I have any disposing power, I give," Ac, to P. and his heirs.
At the time when this will was executed, B. resided on an estate derived from his own family,
which waa partly settled and partly held in fee.

Held : That tlia devise of ** all wy real estate over which I have any disposing power" was under
the cireomstances to be construed as a devise of the unsettled patrimonial estate of B., and
did not opomie as an execution of the limited power of appointment over the estates which he
held aa tenaiit for life under BL's wilL

Bt an order of Vice-chancellor Knight Bruce in this cause, a case,
of which the substance is stated below, was sent for the opinion of this
Court.

245 COOKE V. CUNLIPPB. T. T. 1861.

Mary Pulestone, being seised in fee simple of the castle and manor

♦24f51 ^' lordship of Ewloe in Flintshire, and ♦other lands in the coon-

^ ties of Flint and Denbigh, made her will, dated 19th September,

1802, duly executed in manner then required by law. This willwts

set out in the case.

By it she devised her estates to the use that two trustees named
ahould, during the joint lives of Bryan Cooke, her son-in-law, and her
daughter Frances, his wife, raise 4002. per annum for her said daughter;
subject thereto, to the use of the said Bryan Cooke for life ; remainder
to the use of the said Frances Cooke for life ; remainder to trustees to
preserve contingent remainders.

t( And, from and after the decease of the survivor of them the sud
Bryan Cooke and Frances his wife, to the use and behoof of all and
every or such one or more of the child or children of the body of the
said Bryan Cooke pn the body of my said daughter Frances Cooke hit
wife begotten or to be begotten, for such estate or estates and interest,
either with or without power of revocation, and in such parts, shaces,
and proportions, and with such terms ^nd provisions for the portions
and maintenance or for the benefit and advancement of any such child
or oliildren, as they the said Bryan Cooke and Frances his wife shall
jointly, at any time during their joint lives, by any deed or deeds,
writing or writings, to be by both of them signed, sealed, and delivered
in the presence of two or more credible witnesses, or as the survivor
of them shall, in default of any such joint appointment, by any deed or
deeds, writing or writings, to be signed by such survivor after the de-
cease of one of them, in the presence of the like number of such wit-
nesses, or by his or her last will or testament in writing, to be signed,
*9471 P^^l'^l^^^' ^^^ declared in the ^presence of three or more such
^ witnesses, devise, direct, limit, or appoint ; and, in default of all
or any such devise, 'direction, limitation, or appointment, or, if any such
shall be made, when and so soon as the estates and interests thereby to
be limited, devised, or appointed shall respectively end and determine,
and as to such part and parts of the same premises whereof no such
devise, direction, limitation, or appointment shall be made," to the use
of Anthony Hardolf Eyre and Saint Andrew Ward, their executors,
administrators, and assigns, for a ««term of 500 years to commence
from the decease of the survivor of them the said Bryan Cooke and
Frances his wife," without impeachment of waste, upon the trusts after
mentioned. And, from and after the expiration or other sooner deter-
mination of the said term of 500 years, and, in the mean time, subject
thereto and to the trusts thereof, to the use of Philip Davies Cooke,
eldest son of the said Bryan Cooke by the said Frances Cooke his wife
(meaning the said plaintiff Philip Davies Cooke), in strict settlement,
with remainders over to the second and other sons of Bryan Couke and
Franc(;s bis wifj.

17 ADOLPHUS & ELLIS. N. 8. 247

The trasts of the term of 600 jears were declared to be, upon trusty
▼hen thereanto required bj the said Bryan Cooke and Frances his wife
at any time during their joint lives/ to raise by mortgage or sale of the
said term of 500 years, or of all or any of the said hereditaments and
premises so limited for the said term, any sums not exceeding in the
whole 10,000{., and pay the same unto the said Bryan Gooke and
Frances bis wife for bis and their own proper use and uses. <« And
upon further trust, in case there shall happen to be one or more child
or children of the body of the said Bryan *Cooke on the body r^nAo
of the said Frances Oooke his wife begotten or to be begotten, '-
other than an eldest or only son, or such other son of the body of my
said daughter, either by the said Bryan Cooke or by any such after
taken husband or husbands as aforesaid, as may by virtue of the trusts,
devises, or limitations herein contained become entitled to the posses-
sion and inheritance of the said premises hereby given or devised unto
or in trust for my said daughter during her life as aforesaid ; then upon
trust that they the said Anthony Hardolf Eyre and Sain( Andrew
Ward, or the survivor of them, or the executors, administrators, or
assigns of such survivor, do and shall by sate or mortgage of my. said
castle, manors, &c., or by the perception of the rents and profits of the
same for all or any part of the said term of 600 years, or by such other
ways and means as they shall think fit, so as not to impeach or preju-
dice the raising and payment of the said yearly rent of 4002. hereby
before limited to or provided for my said daughter Frances Cooke,"
raise any sums of money not exceeding the sum of 1000{. apiece, over
and above the costs, charges, and expenses attending the raising there-
of, for or towards the portion or portions of such child or children (ex-
cept Philip Davies Cooke, or such other son of Frances Cooke as might
after her decease be entitled to the immediate possession and inherit-
ance of the said premises), to be paid and payable to such child or
children at such time and in such proportions as Bryan Cooke and
Frances his wife shall by any joint deed or deeds executed in the pre-
sence of two witnesses jointly appoint ; and, for default of such joint
appointment, then at such time and in such proportions as the survivor
by his or her deed or deeds executed in the presence of two witnesses,
or by his or her last will, &c., should ^appoint ; and, in default r^nAQ
of such appointment, then upon trust to raise << the said sum of '-
10002. apiece for or towards the portion or portions of all such children
of my said daughter Frances Cooke not being an eldest son as afore-
said :" the portions of sons to be paid at the age of twenty-one, and
the portions of daughters to be paid at the age of twenty-one or mar-
riage, <* which shall first happen, if such respective times of payment
shall happen after the death of the said Bryan Cooke and of my said
daughter Frances Cooke ; but, if in the lifetime of them or either of
them, the same to be paid within six months next aft^ the decease of
VOL. XVII. — 22 P

249 COOKE V. CUNLIPFE. T. T. 1851.

L-^

the Barvivor of them ; unleaa the said Bryan Cooke and Franeee his
wife or the survivor of them shi^ll direct or appoint the same to be
raised in his or her lifetime, which they respectively may do if be, sbe,
or they shall so think proper; and in such case the said term of fi?e
hundred years shall commence and take effect from the time of such
direction or appointment as last aforesaid." There were powers for
the maintenance and advancement of the children while minors.

The case then proceeded as follows.

The said testatrix Mary Pulestone died on or about the 28d of Sep-
tember, 1802, without having revoked or altered her said will. The
said Frances Cooke, the daughter of the testatrix, died on or about the
8th of January, 1818, leaving the said Bryan Cooke her surviving, and
without having joined with the said Bryan Cooke, her said husband, in
requiring the trustees of the said term of five hundred years, limited
by the said will of the testatrix Mary Pulestone as aforesaid, to raise
the said sum of 10,0001., or any part thereof, or in exercising any power
or authority given to them jointly by the said will. The said Bryan
^ofifi^ Cooke, the ^father of the plaintiff Philip Davies Cooke, dolj
^ made, signed, and published his last will and testament in writing,
bearing date 17 th April, 1821, and executed by him in the presence of
and attested by three witnesses, and which was set out. The material
part was as follows.

«( This is the last will and testament of me, Bryan Cooke of Onston
in the county of York, Esquire. I give and bequeath the sum of 20002.
to my daughter Frances Mary, wife of William Margesson, Esquire;
and I direct that my executors hereinafter named do pay the said aum
of 20002. into the hands of the trustees for the time being of my said
daughter's settlement, to be invested by them in their names in govern-
ment or real security, to be held by the said trustees on the same trusts
and to and for the same ends, intents, and purposes as are expressed in
the said trustees of my daughter's portion thereby vested in the said
settlement. I give to each of my younger sons such a sum of^monej
as, with the fortunes which they are entitled . to under the settlement
made on my marriage with their mother, and under the wills of their
late grandmother Mrs. Mary Pulestone, and their late aunt Mrs. Frances
Pulestone, will make up to each 8000{. : and in case my personal estate
shall be insufficient to pay the said several legacies I charge my real
estates with the payment thereof: but, in the event of my said sons
dying under the age of twenty-one years, I will that the legacy of such
son so dying shall sink into my residuary personal estate. I direct
that, until such legacies are paid, they shall carry interest at SL per
cent, from the time of my decease."

He then bequeathed several legacies ; and the will proceeded. « All

^^-^^ the residue of my personal estate and *all my real estate over

-* which I have any disposing power I give, devise, and bequeath

17 ADOLPHUS A ELLIS. N. S. 251

to mj eldest eon Philip Davies Cooke" (meaning thereby the plaintiff),
((his beira or aesigns, or, in the event of his decease in my lifetime, to
saeh other of my sons as shall be my eldest son at the time of my
decease, and to his heirs and assigns ; and I appoint my son IMiilip
Davies Cooke, the said Anthony Hardolf Eyre and William Bryan
Cooke, and the sarnvor of them, guardians and gnardian of my children
daring their respective minorities ; and I give, devise, and bequeath all
estates of which I am seised and possessed in trust or by way of mort-
gage unto the said Anthony Hardolf Eyre and William Bryan Cooke,
their executors, administrators, and assigns, according to the natures
of the same estates respectively, upon trust to reoonvey or transfer the
same to the several persons who are or shall be beneficially entitled to
the same, or to such uses and upon suo^ trusts as they respectively
shall direct."

The said Bryan Cooke died on or about the 14th December, 1821,
without having revoked or altered his said will.

At the date of his said will the said Bryan Cooke resided in the
mansion on the family estates situate in the county of York, which were
considerable, and of which he was tenant for life under settlements exe-
cuted on his marriage with the mother of the plaintiff; and the said
testator was at the date of his said will seised in fee simple of other
estates adjoining the said family estates.

There was issue of the body of the said Bryan Cooke on the body
of the said Frances Cooke his wife begotten, five ^children, vis.,
his eldest son, the plaintiff Philip Davies Cooke, and four younger
children, Robert Bryan Cooke, Anthony Cooke, William Bryan Cooke,
and Mary Frances Cooke, all of whom attained twenty-one. The said
Mary Frances Cooke, in the lifetime of the said Bryan Cooke, and
before the date of his said will, that is to say in the month of May,
1818, intermarried with and became the wife of the Reverend William
Margesson ; and on'that marriage, by an indenture dated 19th May,
1818, and made or expressed to be made between the said Bryan Cooke
of the one part and the said Mary Frances Cooke of the other part,
and which was executed by the said Bryan Cooke in the presence of two
witnesses, the said Bryan Cooke, pursuant to and by force and virtue
and in exercise and in execution of the powers or authorities vested in
him the said Bryan Cooke under and by virtue of the said will of the
said Mary Pulestone, and of all other powers and authorities enabling
him the said Bryan Cooke in that behalf, did direct, limit, and appoint
that the sum of lOOOi. should, upon the decease of him the said Bryan
Cooke, be raised out of the estates devised by the will of the said Mary
Pulestone for the portion of the said Mary Frances Cooke, and should
become a vested interest in her the said Mary Frances Cooke upon the
execution of the now stating indenture^by him the said Bryan Cooke.
The lOOOL portion of one of the younger sons of the said Bryan

[♦262

COOKE V. CCNLIFPB. T. T. 1861.

Oooke remains unpaid. The portions, of lOOOI. each, of Brjan Cooke's
other younger children have been paid to them by parties who have
taken assignments of sach portions.

^Q-n-| These portions of 1000^ each were referred to by *the testator
-' Bryan Cooke in that part of his will in which he referred to the
Will of Mrs. Mary Pulestone, the late grandmother of his yoonger
sons.

The questions for the opinion of thb Court were by the Vice Chan-
cellor's order directed to be :

1. Whether the said term of ^ve hundred years limited by the said
will of the said Mary Pulestone is a subsisting term.

2. Whether the said Philip Davies Cooke is seised for an estate of
inheritance in fee simple of t^e said castle, manor, lands, and heredita-
ments so devised by the said will of the said Mary Pulestone as afore-
said, subject to the said term or otherwise, or whether he is only tenant
for life of the same hereditaments.

MalifUy for the plaintiff. — The question is whether the will of Bryan
Cooke is an execution of the power conferred on him by the will of
Mrs. Pulestone. No formal or technical words are necessary for the
due execution of a power. All that is required is that an intention in
the donee of the power to execute it should appear ; and for that pur-
pose it is sufficient if the words used refer either to the power itself, or
to the subject-matter. In the present case the devisor clearly intended
to give the plaintiff all he could. He gives him " all my real estate ;"
that taken alone includes everything strictly the devisor's; he then
adds words which, if he intended to give him also the real estate not
properly his, but the subject-matter of the power of which he was the
donee, are a concise but effectual reference to it : on any other sup-
position they are surplusage. He says ««A11 my real estate over
*2^41 ^^^^^ ^ ^^^® ^^7 disposing power." [Lord Campbbll, C. J. —
^ In *your construction you give no effect to the word " iwy."]
Had the words used been << aU the real estate over which I have any
disposing power," the case would have been too clear for argument.
And when a person has an interest in an estate, << my" and «< the" as
applied to it are convertible terms ; Standen v. Standen, 2 Yesey, Jon.
589, Bailey v. Lloyd, 6 Buss. 880. [Lord CampbblIi, C. J. — Undoubt-
edly the words << my estate" may be used so as to show that the testator
meant by them «< the estate" not strictly his ; but it must depend on
the context. You cannot lay it down as a general canon of interpre-
tation that the word «< my" used in a will is equivalent to «< the."] The
words «<over which I have any disposing power" are in themselves
equivalent to << over which I have a power of appointment ;" so that a
part of the will would be inoperative unless applied to the power ; and
the case is brought within the principle of Wallop v. Lord Portsmouth,

17 AD0LPHU8 k ELLIS. N. S. 254

reported in Sagden on Power8y(a) and of Bennett v. Alburrow, 8
Veeey, 609.

Peaeoeky contrd. — The leading ease on this sabject is Roake v. Denn,
4 Bligh N. S. !•(&) There Alexander, G. B., delivering the unanimous
opinion of the Judges in the House of Lords, says :{e) «( There are
many cases upon this subject, and there is hardly any subject upon
which the principles appear to have been stated with more uniformity,
or acted upon with more constancy. They begin with Sir Edward
Clere's Case, 6 Bep. 17, in the *reign of Queen Elisabeth, and r^ontt
are continued down to the present time ; and I may venture to ^ ^
say, that in no instance has a power or authority been considered as
executed, unless by some reference to the power or authority, or to the
property, which was the subject of it ; or unless the provision made
by the person intrusted with the power would have been ineffectual,
woald have had nothing to operate upon, except it were considered as
an execution of such power or authority." This opinion, which was
adopted by Lord Lyndhurst, C, and Lord Tenterden, may be consi-
dered as the law on the subject. Each of the cases cited in the argu-
ment for the plaintiff will be found to be an application of the principles
there laid down.

In the present, case, it is conceded that there is no direct reference
to the power. Is there, then, any reference to the subject-matter of
the power ; or (which may be said to be the same question) is there
anything not the subject-matter of the power which will satisfy the
description in the will ? To answer this, the state of facts must be
looked to. Bryan Cooke, at the time when he made his will, had
estates in Yorkshire, on which he resided, which came from his father's
fiunily, and were properly speaking his. Part of those estates were
settled so that he had no power to dispose of them at all. Part were
his in fee sinaple; and he had complete disposing power lover that por-
tion. There were also the Welsh estates, which had belonged to his
deceased wife's mother, and in which he had, under her will, a life
interest, and a power, not to dispose of them absolutely, but to appoint
them among a class, his sons. Under these circumstances, he devises
to the plaintiff " all my real estate over which I have any disposing
power." Had the plaintiff not been one of the class in whose r^neg
^favour a power under Mary Pulestone's will could be exercised, ^
for instance supposing he had been a nephew, these words would have
all been satisfied. It would then have been clear that the testator
intended by this description to give him his unsettled Yorkshire estate.
The plaintiff is a son, one of the class in whose favour a power over

(a) 7Ui ediUon, toL 1, p. S77, toI. t, p. M7.

(6) Afiratas th« Judgment of K. B. in Denn «f. Ronke. ft B. a 0. 7S0 (B. 0. L. R. toL l\\
vUeh ivTenad fthe JndgaifBt of the Oonmom PImi in Dot dom. VowoU •• Bonko, % Binf . 497
(I. C. L. R. ToL 9).

(•) 4 BUffk N. 8. 17.

266 COOKE V. CUNLIFPB. T. T. 1861.

i __«

the Pulestone estates could be exercised ; bat tbere is nothing to show
that the intention of the testator was to exercise the power. On the
contrary, the manner in which he provides for his jonnger sons shom
that he did not intend to exercise it. They were entitled to KMKH.
apiece under the trusts of a term, which was not to arise except in
default of the exercise of this power. The testator knows this : he
does not in an inartificial manner appoint that they shall take lOOOL,
or any other sum, but gives them from other sources so much monej
as may, in ^ addition to what they are entitled to under the will of
their late grandmother,'* make up 8000^ It is in effSsct as if he bad
said, << If I do not exercise the power I possess, they will each have
something ; I do not exercise that power, and I give them more." It
is also somewhat doubtful whether, after the power to give a fortune
had, during the testator's life, been exercised in favour of the daugh-
ter, the antecedent power to appoint the fee to the son could be exe^
cised. It certainly would no longer be so exercised as to prevent the
term for 500 years from coming into operation. But, whether the
testator could exercise the power or not, it was clear that it is not his
intention to do so : and the onus lies on the plaintiff to show such an
intention. Slight circumstances will not suffice ; 1 Sugden on Powen,
870 (7th ed.).

*2571 ^^i^^i ^^ reply. — The appointment of a portion under *the
-> term of 500 years in favoui^of one daughter is not inconsistent
with the exercise of the power, subject to that term and that portion.
The term may be transposed.

Lord Oampbbll, C. J. — It has long been well settled that the donee
in exercising a power must show an intention to. exercise it, either bj
directly referring to the power or by referring to the subject-matter of
it. In the present case there is no direct reference to the power ; and
I think there is no sufficient reference to the subject-matter. The tes-
tator uses these words : << all my real estate over which I have any dis-
posing power I give" <« to my eldest son" (the plaintiff), his heirs or
assigns. He had, at the time he used those words, estates of his own,
family estates coming from his own ancestors, and on which he resided;
part of them were under settlement, and part were at his absolute dis-
posal : and every word in this will is satisfied by supposing that he
referred to those patrimonial estates over which he had complete dis-
posing power, and not to the Pulestone estate over which he had a
limited power of appointment. The reference to the subject-matter of
a power must be unequivocal, to have the effect of making a devise be
an execution of it. In the present case, if it were necessary, I should
have no hesitation in saying that the will clearly showed an intention
not to exercbe the power. For it is clear that the testator intended to
allow the term for 500 years to exist, and that the younger children
should take the portions under it. It is, at least, highly improbable

17 ADOLPHUS & ELLIS. N. 8. 267

thftt he should under such circumstances intend to exercise a power
antecedent to the term, and which, primft facie, wonld seem, if exer-
cised, to defeat the term : but it is clear that^ if he had so *in- r^tico
tended, he would not have used such expressions as these. He *-
would not in one sentence include his fee simple estates which he had
absolate power to dispose of, and the settled estates over which he had
not the same kind of power, though he might appoint them, subject to
B burthen, amongst a particular class. The words are not so applicable
to the last kind of estate, as to the first. The cases cited establish
principles which are not in controversy. They are instances of the
application of those principles to particular circumstances. I apply
them to the present case, and answer both questions in favour of the
defendants.

Pattbson, J. — I think the question really comes to this : Is there
anything which will satisfy the words used in Bryan Cooke's will so as
to make it unnecessary to resort to the Pulestone estate as the subject-
matter of the devise 7 I think there is amply enough for that purpose
stated in the. case. It is true that, applying the words << all my real
estate over which I have any disposing power" to an estate of which he
was seised in fee simple, the. latter words are of very little use ; but I
think the testator did intend so to apply them. It would be quite a
different thing if he had used the words << over which I have any dis-
posing power under the will of Mrtf. Mary Pulestone." As to that will
itself: the provisions are by no means clear. The term for 500 years
18 to commence on the death of Bryan Cooke and Frances, in default
of the exercise of the *power of appointment among the sons, yet the
very first trust of the term is to raise 10,0002. during the lives of these
persons, and that by. a term which is not to commence till after the
death of the survivor. It is not easy to see how that was to be done.
Be that however as it may : I have doub^ ^whether, after the

trusts of this term had been partly executed l>y the appointment

[*259

in favour of the daughter, the testator had any longer a disposing power
under Mary Pulestone*s will; but I am quite clear that he did not
mean to exercise such a power if he had it. It is most improbable that
he should intend to exercise a prior power after h&ving partially exer-
cised a subsequent one.

Erls, J.(a) — The plaintiff alleges that his father Bryan Cooke in-
tended to exercise a power, which the father had under the will of
Mary Pulestone, to appoint the Pulestone estates to the plaintiff in
fee. The words which the father has used in his will are these, << All
my real estate over which I have any disposing power I give, devise,
and beqoeath to my eldest son," and his heirs. These words can in one
sense be applied to the Pulestone estates : for Bryan Cooke was tenant
for life of those estates under Mary Pulestone's will, so that they were,

(o) Coleridge^ J^ wat aot in Court

259 COOKE r. CUNLIFFB. T. T. 1851.

in one sense, his estate, and he had power to appoint how they should
go amoDgst a particdar class, viz., his sons, and had in one sense dis-
posing power over them. But the words may also be explained m
applicable to the Yorkshire estates, which were his own patrimonial
inheritance, and over part of which he had disposing power, being
owner in fee simple. I think that, giving to the words their ordinary
sense, they show that he did not intend to exercise the power under the
will. He might well call the Yorkshire estate <<my" estate, as con-
tradistinguished from the Welsh estates which were his wife's ; and,
for the purpose of distinguishing the fee simple from the part which
was settled, describe it as that over which he had disposing power ; snch
MGi)-] ^ think *i3 the more obvious meaning of those words, which are
-' not so applicable to the Pulestone estate ovjer which he had
power to appoint ampngst a class, as to his own fee simple estate of
which he might dispose as he pleased. And this construction I think
ia confirmed by the way in which he deals with the term of 500 years
created by Mrs. Pulestone's will. That term was, under the provisions
of the will, to come into effect in default of exercise of the power of
appointment ; and the trusts were for securing portions to the younger
children. Mr. Maliiu argues that the testator intended to exercise the
power of appointment subject to the term ; but Mr. Peacock^ in his
very able argument, points out that the term had been brought into
operation in his lifetime by his joining in fixing the portion of one child,
a daughter, but the trusts as to the amount of the portions of the
younger sons were left indefinite ; and he argues that, if the testator had
intended to exercise his power of appointment .subject to the terra, he
would at all events have expressed his intention clearly, and said what
portion each child was to take. It seems to me that, if he intended to
exercise the power subject to the term, it is at least left ;n doubt what
sum each of the younger sons was to take under the trusts of the term
out of the estate. Construing the will the other way, it is clear, as
each younger child takes 10002. under Mrs. Pulestone's will in default
of an exercise of the power of appointment.

The Court certified

That the term of 500 years, limited by the will of the said M.
Pulestone, is a subsisting term. And that the plaintiff, P. D. Cooke,
is tenant for life only of the hereditaments comprised in the second
question.(a)

(a) Beportod by 0. Blftckboni, Bmi.

A will containing no reference to a If one having only a power to dispose

power, with which the testator is of lands, but no interest in them, make

clothed, will operate as an appointment a disposition of them without reference

under the power, if it can have no other to the power, they shall be considered

operation : Bradish v, Oibbs, 8 Johns, as passing by virtue of the power ; b^

Oh. Rep. 523. cause otherwise the dispositioii would be

17 ADQLPHUS A ELLIS. N. S. 260

inopentive and void : Allison v. Kurtz, the land, without reference to his power,

2 Watts, 188 * It is well settled that the land shall pass hy virtue of his

when a man hath hoth a power and in- ownership : Hay ik Mayer, 8 WattSy

terest, and undertakes to convey even 209.
generally and not specially as owner of

♦ARMISTEAD v. WILDE. June 5. [»261

Cm« by a gue«t a^inst-an innkeeper for loss of money, in the inn. Plea : Kot Ouilty. It was
prored that the guest showed the money ostentation tly in the presence of severni persons, and
then openly pat it in an ill secured box, which he left in the traTollers' room ; and from thence
it was stolen. The judge told the jury that gross negligence on the part of the guest would
excuse the landlord, and lefc it to them to say " whether there was gross negligence in leaving
the money in the travellers' room." The jury found fur the defendant.

Held ; that if the direction had been that the landlord of an inn was'not answerable for the Ion
of money left in a public room, it would have been wrong : but that» taking the direction
with reference to the facts in evidence, it must have been understood by the jury to mean that,
if the guest was guilty of gross negligence conducing to the loss, the innkeeper was not re-
spftn^lble : and that the facta were evidence of such negligence conducing to the loss ; and the
direction right

Qimre, whether it is necessary to the innkeeper's defenee, in snob a case, that the 4iegligeoe«
should be gro^u f

Case against defendant as an innkeeper, for the loss of a parcel of
money, brought by plaintiff's servant as a guest to defendant's inn, and
there lost.

Pleas 1. Not guilty. 2. A traverse of the defendant's being inn-
keeper. Issues thereon. There were other issues which it is unneces-
sary to notice.

On the trial, before Piatt, B., at the Liverpool Spring Assizes, 1851,
there appeared strong evidence that the defendant acted as mistress
of an inn at Liverpool, though there was nothing absolutely inconsistent
with her being there merely as housekeeper. The plaintiff's brother,
who was his traveller, had for many years freqtiented the inn: he came
there, whilst defendant was acting as above, bringing with him a box,
which he left at night in the travellers' room, as he had often done
before. In the morning he found that the box had been forced open,
and a parcel containing several hundred pounds in bank notes, the pro-
perty of the plaintiff, had been stolen ; and it was for this loss that
the action was brought. It appeared on cross-examination that the
box was very imperfectly secured, and that the traveller had rmooQ
*boasted of the sum which he possessed, and had ostentatiously '-
rolled up the notes and put them in the box in the travellers' room in<
the presence of several persons. There was strong ground to suspect
that one of those to whom he thus showed the notes had been the thief.
The learned Judge, in summing up, told the jury that gross negligence
on the part of the guest would exonerate the innkeeper from liability;
he* commented on the facts, and directed the jury to find for the plain-

VOL. XVII.— 23

262 ARMISTEAD r. WILDE. T. T. 1851.

tiff on the issue of Not guilty, unless they thought the traveller ^^had
been gailty of gross negligence in leaving the money in the trsTellers'
room." No complaint was made of the way in which the other issoes
were left to the jury. The jury found on the first and second issues
for the defendant, on the others for the plaintiff.

WilkinSj Serjt., in last Easter Term, obtained a rule nisi for a new
trial on the ground of misdirection, and also on the ground that the
verdict on the second issue was against the evidence.

KnowU^ and Orompton now showed cause. — The Judge's direction
on the first issue was correct. The defendant's case at the trial was
that, though the innkeeper was prim& facie liable for the loss of the
parcel, the plaintiff could not recover against the innkeeper for a loss
induced by the misconduct of the guest, the plaintiff's servant. There
was evidence that the guest, in the presence of many persons, wantonly
made it obvious to them all that this large sum of money was placed
in an ill-secured box, left in a public room, in a populous town : and
there was strong reason for believing that one particular person, to
whom he thus showed the money, was the thief. Tlfe learned Judge
4'9R^1 Mated, in ^summing up, that an innkeeper was not bound bj &
-' loss occasioned by the guest's gross negligence ; he then com-
mented on this evidence; and he finally told the jury that they should
find for the plaintiff on the plea of Not guilty, «« unless they thought
that the guest had been guilty of gross negligence in leaving the parcel
in the travellers' room." It may be conceded that there would have
been a misdirection if the learned Judge had told them that the guest
by leaving the parcel in the travellers' room had taken it out of the
landlord's custody : or. even if he had led them to believe that it was
the guest's duty to take the parcel to his bedroom, or take any parti-
cular care of it. But, when the direction is taken with the context,
it means that leaving the parcel in the room under these circumstances
was evidence from which they might infer gross negligence conducing
to the loss : and, that an innkeeper is not liable for a loss so occasioned,
was a right direction.

(The argument as to the weight of evidence on the second issue is
omitted.)

John ffendersauy in support of the rule. — The learned Judge gave the
jury a false criterion as to what was negligence ; he put the case to
them as if the lea^ng of the box in the travellers' room was a breach
of duty on the part of the guest.

Lord Campbell, C. J. — I am of opinion that the rule should be dis-
charged. If the learned Judge had intimated to the jury that it was
the guest's duty to withdraw the property from the travellers' room and
carry it with him to his bedroom, it would have been a misdirection :

►264]

but such was not his direction. The ^learned Judge reports that
he finally left the question to the jury whether the guest was

17 ADOLPHUS ft BLUS. N. S. 264

■ ■ ■ - I

Mgnilty of gross negligence in leaving the parcel in the trayellers'
room:" that most be taken with reference to'the circamatances of the
case. Can it be contended that it is impossible in point of law for a
gaest under any cirenmstanees to be guilty of negligence in leaving a
parcel of money in the travellers' room ? Suppose a guest were to count
oat his money and leave it lying loose on the table of the public room ;
. sorely that might be such gross negligence as to be the cause of the
loBB. The facts here do not ^o so far as that ; but there was evidence
that the plaintiff's servant in a public room, took out a large sum of
money, counted it and showed it, and then left it there in a box capable
of being opened without using a key. These facts might or might not
amount to negligence : but they were evidence of it ; and it was a fair
qaestion for the jury. We do not lay down that goods left in the tra-
vellers' room in an inn are not in the care of the landlord, or that he is
Bot responsible for their loss. Clearly he is prim& facie responsible.
But there may be circumstances as to the nature and value of the pro-
perty, the position of the room, or other things, which may make such
conduct in the guest negligence conducing to the loss, and so rebut the
landlord's prim& facie liability. There is no rule of law to make it so.
It may in one case be gross negligence to leave property in the public
room ; in another it may be gross negligence to remove it thence to the
guest's bedroom : each case must depend on its own circumstances. In
the present case there was evidence to go to the jury of gross negligence
on the plea of Not guilty ; that issue was properly left to the jury : and
the verdict '''on that issue must stand. That being so, the ques- rn^oaR
tion whether the verdict on the second issue was or was not *-
according to the evidence becomes immaterial. .

Patteson, J. — I take the law to be clear that the innkeeper is prim&
facie liable for the loss of goods in his house, though they are left in the
commercial room. There may be a difference where the innkeeper has
warned the guest not to do so, and he persists in leaving them there.
But in the present case there was no discussion between the guest and
the innkeeper as to the place in which the parcel was to be left. The
guest left it in the public room ; and, if that had been all, the innkeeper
would clearly have been liable for the loss. When the rule was granted,
I had understood the Judge's direction to have been that the jury were
to consider whether a prudent man would, of his own accord, have taken
the parcel to the innkeeper and left it with him, or^ave taken it to his
own room and locked it up, and that the jury were led to receive that
as an exposition of what in the Judge's opinion woul.d have been negli-
gence. But it now appears that there were other circumstances in this
case : and I agree that, although the landlord is prim& facie liable, his
liability may be rebutted by proof of such negligence on the part of the
guest as to lead to the loss. Whether such negligence exists must
always bo a question of fact. In the present case there were oircum-

265 ARMISTEAD v. WILDE. T. T. 1851.

stances, such as the guest ostentatiouslj rolling up the notes and letting
people see that he put them in an ill secured box, which were evidence
that might justify a finding that there was such gross negligence as to
lead to the loss ; and the verdict on the first issue should not be dis-
turbed. That being so, the second question is of no consequence.
\ «n/«/.i *CoLERiDGE, J. — It Cannot be disputed that there msy be
^ negligence on the part of the guest such as to relieve the land-
lord from his liabilitj. The question is whether in the present case
there was evidence of such negligence, and whether the proper guidanee
was given to the jury. If the learned Judge had pht the case to the
jury as if the fact of leaving the money in the travellers' room alone
could have exonerated the landlord, he would have been wrong : bat
liis direction must be taken with reference to the circumstances on
which he had just commented. There was evidence that the goest
ostentatiously showed the money, and allowed it to be seen that he left
it in an insufficient box. There was a case which might properly go to
the jury ; for there was evidence of facts which might make it negli-
gence on the part of the guest to leave the money there.

Erlb, J., concurred.

Lord Campbell, C. J., added : The learned Judge reports that he
left it to the jury to say whether there was ^^ gross** negligence on the
part of the guest. I doubt whether that direction was not too favour-
able to the plaintiff. I give no opinion on this point, which does not
• yise : but it is not to be taken that we have decided that negligence
on the part of the guest conducing to the loss will not exonerate the
landlord unless it amount to crassa negligentia.

Rule discharged.(a)

(o) Reported by G. BlaelcbniHy Eaq.

An innkeeper is responsible for the loss, notwithstanding it was usual to
safe keeping of the goods of a traveller place loaded wagons in that place :
who stops at the inn for the night, if Albin v. Presbj, 8 N. Hamp. 408. An
the carriage containing the goeds is de- innkeeper is responsible for property of
posited in a place designated by the a guest left in the inn, though not
servant of the innkeeper, though it placed in the special keeping of the inn-
should be an open space near the high- keeper : M' Donald v, Edgerton, 5 Bar-
way : Piper v, Manny, 21 Wendell, hour Sup. Ct. 560. If the guest quits
282. When, howevej, a loaded wagon the inn leaving his baggage behind him,
was placed under an open shed near the the innkeeper is no longer responsible
highway, without any request to the for its safe keeping, unless it is specially
innkeeper to take the custody of it, and committed to his charge, and then onlj
goods were stolen from it, it was decided as a common bailee : Wintermute v.
that the innkeeper was not liable for the Clark, 5 Sandford, 242.

17 ADOLPHUS k ELLIS. N. 8. 267

*EATON V. The SWANSEA Waterworks Company. June 5. [*267

CiM for diitarbing a wateroonrae whioh of right ought to flow into plaintiflT's close to irrigate it
Plea : denial of the right. On the trial it appeared that the watercooree was not aneient, bat
that the water bad flowed in ite present coarse for more than twenty years, past plaintiff's close.
There was evidence that daring that period plaintiff, and those ander whom he claimed, had
been constantly in the habit of drawing off the water to irrigate his close, and that the owners
of the watercoarse resisted it. On one occasion, when plaintiff's serrant drew off the water,
he wan sammoned before a justice for so doing ; plaintifi^s son by his direction attended and
defended the serTant, and paid a fine of ]«. The conviction was under a local act, from whiph
there was a power of appeal. Plaintiff did not appeal.

The eooTiotion was tendered in evidence, and rejected. In summing up, the Judge explained
that the enjoyment to defeat an adverse right must be for twenty years, without interruption
acquiesced in for a year. One of the jury asked what would be the effect in law of a state of
perpetual warfare between the parties t which question the judge did not answer. The jury
found that ** the watercourse had been enjoyed as of right for twenty years, and without inter-
rapfcion for a year," and were directed to find for plaintiff.

Held that the evidence was improperly rejected, as the conviction, unappealed against, was,
under the dreumstancee, evidence of an acknowledgment by the plaintiff, that the usage, to
draw off the water for irrigation, was not as of right :

Held also tfa«t interruptions, though not acquiesced in for a year, might show that the enjoyment
never was of right, but contentioas throughout; though, if once the enjoyment as of right
had begun, no interruption for less than a year could defeat it : and consequently that the man-
ner in which the question was left» and the verdict found, was not satisfactory ; and a new trial
was granted.

Case. The first count stated that plaintiff was possessed of a close
called the Home Field, and by reason thereof « oaght to have had and
enjoyed, and still of right ought to have and enjoy, the benefit and
advantage of the water of a certainf stream or watercourse, which had
been used to run or flaw, and during all that time of right ought to
have run and flowed, and, until the time of the diversion hereinafter
complained of, did run and flow, and still of right ought to run and
flow, into the said close*' for irrigating the same ; which the defendants
diverted.

Plea to 1st count : That plaintiff <« by reason of his possession of
the said close ought not of right to have ♦had or enjoyed, nor r»of»o
ought he still of right to have or enjoy, the benefit or advantage ^
of the water of the said stream or watercourse in that count mention-
ed, nor had the said stream or watercourse been used to run," &c.,
««nor ought the same at the time when," &c., <«of rfgbt to have run,'*
kc», «<or ought the same to run," ««unto or into the said close," modo
et formft. On which issue was joined. •

There were two other counts claiming the stream in respect of the
Flat Field, and the Clover Field, on which the pleadings were similar.

On the trial before Williams, J., at the last Glamorganshire Spring
Assizes, it appeared that stat. 7 W. 4 & 1 Vict. c. lii.(a) incorporated
the promoters of the Act by the name of <« The Swansea Waterworks
Company," and authorized them, among other things, to make water-
Co) Local and personal, puhlio. " For better supplying with water the town and borough of
6wmiisea in the eounty of OUmorgan."

*269]

2G8 EATON t; SWANSEA WATERWORKS CO.* T. T. 1851.

works, and for that purpose to purchase from the owners, by their con-
sent, two mills, called Upper Bryn Mill, and Lower Bryn Mill, and the
ponds and reservoirs of those mills, and the enjoyment of the water of
the brooks and streams flowing into those ponds, and, under certain re-
strictions not material to the present case, to divert those waters into
the Company's waterworks. By sect. 82 it is enacted that, if any per-
son shall (amongst other things specified) «< wilfully flush or draw off, or
cause to be flushed or drawn off, the water from any parts of the said
waterworks," « every person so offending shall forfeit and pay to the
said Company for every such offence any sum not exceeding 10/." Bj
sect. 93 such penalties are to be recovered before a justice of the

*peace. And sect. 99 gives an appeal to the Quarter Sessions.

The Company in 1839 purchased from the owners the two mills
and mill-ponds, and the water belonging to them. Under this purchase
they diverted into their waterworks a stream called Cwm Donkin. The
present action was brought by order of Bruce, V. C, to try the right
as between them and the plaintiff to that watercourse. *

The stream called Cwm Donkin took its origin above the plaintiff's
land ; it skirted the plaintiff's three closes, separated from them only
by a wall, and then, below the plaintiff's land, flowed into what Ead
been the Upper Bryn Mill-pond, and was now the Company's reservoir.
The diversion complained of was a recent alteration in the course of
the Cwm Donkin, above the plaintiff '« land, made for the purpose of
forming a new reservoir for the Company. The plaintiff, at first, relied
on his right to the use of the stream by immemorial prescription: the
evidence was conflicting: but on th« whole it appeared that, about
thirty years before 1st February, 1851, on which day the action was
commenced, a new channel had been dug for the Cwm Donkin, and
that from that time it had flowed in its present course, which was not
therefore ancient. The plaintiff theA rested his case on twenty years'
enjoyment under the Prescription Act (2 & 8 W. 4, c. 71). There was
a great body of evidence on both sides. The plaintiff gave evidence
from which the jury might fairly have inferred that the plaintiff, and
those under whom he claimed, had been, for twenty years and more, in
the habit from time to time of making a trench through a hole in the
wall and so drawing off the water to irrigate the three fields in ques-
**^701 ^^^^' '^^^^^ ^^^ ^'®^ evidence *from which it might be inferred
^ that the occupants of the Upper Bryn Mill had (up to the time
when the mill was conveyed to the defendants in 1839) been in the
habit of stopping up this trench whenever it was made ; and that the
defendants, since they acquired the mill, had pursued the same course.
A witness for the defendants, named Luke, proved that on one occa-
sion, in 1840, after the defendant^ had turned the stream into their
works below the plaintiff's land, the defendants had closed the trench,
and he as a servant of the plaintiff, by his order, opened it and drew off

. 17 ADOLPHUS & ELLIS. N. S. 270

the water ; that he had been summoned before a justice in consequence ;
and that the plaintiff's son, by the plaintiff's direction, went with Luke
before the justice, defended him, and ultimately paid a shilling ; and
there was no appeal. A conviction of Luke before that justice for wil-
fdly drawing off water from the Company's waterworks, under stat. 7
W. 4 & 1 Vict. c. Hi. 8. 82 (above set out), was tendered in evidence by
the defendants and rejected. In the course of the summing up, the
learned Jpdge stated to the jury that one question was as to the enjoy-
ment as of right for twenty years. He explained that to defeat a right
an interruption must be acquiesced in for a year. A juryman asked.
What would be the law, if there had been during 'more than twenty
years a perpetual state of warfare between the parties ? The learned
Judge said that, if they thought such the fact, tbey should say so, and
then he would give his direction. In the end he put to the jury ques-
tions in writing as to each count ; to which the jury gave written
answers*

The questions and answers on which the discussion in banc arose
were as follows.

1. Has the Cwm Donkin Brook flowed through a part *of the i^oti
Home Field as an ancient natural watercourse enjoyed for the ^
purpose of irrigating and watering the same, and the more convenient
occupation thereof? Answer. No.

6. Have the occupiers of the Home Field enjoyed as of right for
twenty years up to February 1st, 1851, a watercourse running through
that field for the purpose of irrigating and watering the same and the
more convenient occupation thereof? Answer. Yes; and without inter-
ruption for a year.

There were similar questions and answers as to the Flat Field and
the Clover Field. The learned Judge directed a verdict for the plaintiff.
JEvan9j in the ensuing term, obtained a rule nisi for a new trial, on
the ground of misdirection, and of the improper rejection of evidence.
He contended that the learned Judge's summing up had the effect of
leading the jury to suppose that, if the water was taken by the plaintiff
at intervals during twenty years, it was immaterial whether the enjoy-
ment was of right, or secretly or forcibly, provided the intervals at
which it was taken were less than a year. He said that what the jury-
man called the «< perpetual warfare*' between the parties was a fact
proper to be left to the jury as tending to show that the water was not
taken as of right ; and that the conviction was material evidence for
the same purpose. The rule was also obtained .upon affidavits.

Qrove and Bovill now showed caube. — There was no misdirection.
No interruption not acquiesced in for a year can operate as an interrup-
tion ; Flight V. Thomas, 11 A. k E. 688 (E. C. L. R. vol. 39).(a) .^^^g
*[Erle, J. — I was counsel for the successful party in that case ; ^

(o) Jadgment of Ezch. Ch. affirmed in Dom. Proc. 8 01. k Fin. 231.

272 EATON v. SWANSEA WATERWORKS CO. T. T. 1851.

and the jadgment was afSrmed in the House of Lords: yet I always
thought it a strange decision. The effect of it was that, where there
had been an enjoyqoent of light for nineteen years and a fraction, and
then an interruption acquiesced in for the remaining fraction of a year,
during which there was no enjoyment, the two together made up twenty
years' enjoyment.] The decision proceeded upon the words of the
statute, and is precisely in point. [Lord Campbell, 0. J. — The decision
in Flight v. Thomas, 11 A. & E. 688 (E. C. L. R. vol. 89), 8. CI. t F.
231, may establish conclusively that, when an easement has once been
enjoyed as of right, such enjoyment must be taken, for the purposes of
the Act, to continue though uninterrupted, unless the interruption be
acquiesced in for a year. But I do not think any member of this Court
is inclined to go beyond that decision.]

Then, the conviction was not evidence, and was properly rejected.
It was an adjudication of a justice on a collateral question, and could
not be evidence against the plaintiff. The facts, as to what took place
before the justice, were admitted ; and even if the conviction had been
improperly rejected it could have made no difference.

JEvans, WilleSy and Benson were not called upoa to support the rule.

Lor4 Campbell, C. J. — There must be a new trial on the ground of
the improper rejection of evidence. It seems to me that, although the
conviction was not evidence per se, or admissible as an adjudication by
mojo-] ^^® ^justice, it was not only admissible, but very material, when
-* connected with the facts which preceded and followed the con-
viction, which it explains so as to make them very important evidence
on the question whether there was an enjoyment as of right.

It appears that Luke, the plaintiff's servant, did an act by his com-
mand; he was summoned before a justice; the plaintiff's son went with
him before the justice and, as the plaintiff's agent, paid the fine im*
posed ; and there was no appeal. The conviction, if admitted, would
have shown that the act for which Luke was fined was drawing off the
water. If he had by the plaintiff's order drawn off the water, and the
plaintiff had a right to draw it off, he would have done no more than
was lawful, and the conviction would have been wrong. The plaintiff,
who knew this, and knew he might appeal, did not do so. That acqui-
escence of the plaintiff in the conviction must be evidence, as an acknow-
ledgment that he did not enjoy as of right. Its weight may be great
or small ; but it should not have been excluded : and certainly it is not
so small as to enable us to say that it could not affect the verdict. |

I have the less regret in sending down the cause for a new trial on
this ground, because I am not convinced that the verdict was satis-
factorily obtained. The jury answer the question put by the learned
Judge in these terms: "Yes; and without interruption for a year."
The answer is a sort of negative pregnant ; and, when coupled with what
passed before, it leads me to suspect that the jury may have thought

17 ADOLPHUS k ELLIS. N. S. 278

that there was a perpetual warfare, and that, though the easement was

elaimed as of right, the enjoyment was not as of right *btit con-
tentious. Now, though it may be that an interruption must be

[*274

acqaiesced in for a full year before it breaks the period, where the
sabject-matter has previously to the interruption been enjoyed as of
right, interruptions acquiesced in for less than a year may be of great
weight as evidence on the question whether there ever was a commence*
ment of an enjoyment of right. Such interruptions are explanatory of
vhat the user really was. I think it would be a monstrous state of law
if this were not so.

Patteson, J. — This conviction was of the plaintiif's servant for an
act done by the plaintiff's command ; he knew of the summons, and sent
his son to attend ; and the son paid the fine, and did not appeal. It is
all one as if the plaintiff himself had been convicted, and paid the fine ;
and it was clearly evidence, for the reasons my Lord has pointed out.

As to, the more important question. This is a claim to an easement
nnder stat. 2 & 8 W, 4, c. 71, s. 2: Flight v. Thomas, 11 A. &; E. 688
(E. C. L. R. vol. 39), 8 CI. & F. 231,(a) was under sect. 8. The words of
sect. 2, << enjoyed by any person claiming right thereto without interrup-
tion for the full period of twenty years," must be understood to have the
same nlfeaning as the words used in sect. 5, where it is enacted that in
pleading it shall be sufficient to allege « the enjoyment thereof as of
right." In the present case the Judge does not give the jury any
specific guidance as to what enjoyment « as of right" is : and their
answer to the question actually put is a little ambiguous. The question
ought to *have been shaped more distinctly ; for there were many r^o^c
pieces of eridence in this case (in addition to the conviction which ^
was rejected) which were proper for the consideration of the jury on
the question w:hether the enjoyment was of right.

CoLBRiDGB, J. — I am of the same opinion. I think that on a question
of this kind it is most important to show what was the nature of the
user, and of the interruptions, as bearing on the question whether the
enjoyment was as of right. For, though no interruption for less than
a year breaks the period when once the enjoyment as of right has begun,
yet interruptions acquiesced in for less than a year may show that the
enjoyment never was of right.

Erlb, J. — The plaintiff claims a right to water from twenty years'
enjoyment, under stat. 2 & 8 W. 4, c. 71. The defendant had, from
time to time, prevented him from exercising the easement claimed. The
question was left to the jury, Had the plaintiff «< enjoyed as of right ?"
These words << of right" occur in sect. 5 of stat. 2 & 8 W. 4, c. 71 ; and
there has been much difficulty as to their construction : but it seems
clear that, if the enjoyment is clandestine, contentious, or by sufferance,

(a) Sm per Maale, J., 11 A. A E. p. 695. See also The Mayor, Ac, of London, v. The Maeter.
Wardent, Ac, of the Pewterers' Companj, 2 Mo. A Rob. 409.
VOL. XVII.— 24 ' Q 2

275 EATON v, SWANSEA WATERWORKS CO. T. T. 1851.

it is not of right. Enjoyment as of right must be ^ nee clam, nee ▼!,
nee precarid."(a) It seems to me that the piece of evidence rejected
was most material on the question whether the nser in the present
*27fil *^*®® ^^ ^^ enjoyment of this nature. The plaintiff drew off
^ the water ; it was an act of user of the very easement now claimed;
then what does the defendant ? He attacks and conricts and fines the
plaintiff, who acquiesces and pays the fine : I say the plaintiff, for Luke
and the plaintiff's son are identified with him. I think the conviction,
which was the proper evidence of this, was most material on the question
whether the user was « of rights For the rest I need only say I agree
entirely with my Lord Chief Justice. Rule ab8olute.(6)

(a) Saod enim et in aerritntibua hoc idem seqaimnr, xk\, ubi serriias non invenitor imposita,
(fill din ufU8 est servitate neqae tI, neqae preearid neqae clam, habniMe loog& oonsuetadine, Tel
Jure impositam serviiadinom videatur. * * • * eritque lata quasi seiritoa. Dig. Kb. 39,
tit 3, De 4tqua, L 1, eec. 23. Bee also Oale on Easements (2d edition), p. 123.

(6) Reported by C. Blackbam, Esq.

Doe on the demise of The Sari of ASHBHRNHAM v.' MICHAEL

June 6. • •

In ejectment, the question being whether the premises were parcel or np parcel of a manor, the
lessor of the plaintiff produced from his muniments books purporting to be the books of J. V.,
stoward to plaintiff 's ancestor the then earl of A, In one of those books J. V. was debited,
in 1782, with the receipt of rent for the premises in question. The balance of the account for
the half year was struck but was not signed : under it was written in a different hand, ** Tbe
above balance is accounted for in a general statement at the end of the year's account ending
Michaelmas, 1793, entered in a subsequent book." This entry was dated February 18, 179»,
and was signed by the then Barl and by ** J. V. Jun.^ The balance was carried down in the
account, and balances were struck in each half year: none were signed by J. V. ; but under
each was a similar entry signed by the Earl and J. V. Jun., until the end of the last book,
•'Where was entered : '' Balance due to J. V. 76/. 18th February, 1795. The above accoant
was this day settled ; and tbe balance, 76/., due thereon to J. V. Sen., was paid by the Earl of
A. to J. V. Jun., and tbe vouchers delivered up to his Iiordship." This was signed by tbe £sil
and J. V. Jun. No evidence was given of the character or position of J. V. Jua., or that he
was dead, or that he had ever existed. '

Held : That, inasmuch as the entry was produced from the proper custody, and purported to be
fifty-five years old, it was not necessary to prove that J. V. Jun. was dead. And that, inai-
mueh as J. V. Jun. charged himself with the receipt of the last balance, and the entry of the
payment of rent was part of the balance in that year which was carried down so aa lo fona
part of the last balance, the entry was admissible evidence of the payment of rent.

Ejectment for a cottage and premises.
^^--, On the trial, before Williams, J., at the last Brecknock ^Spring
-* Assizes, it appeared that the premises were claimed as parcel of
a manor of which the lessor of the plaintiff was unquestionably owner.
Two books were produced from the muniments of the Earl of Ashbum-
ham. These books purported to be the books of John Vernon, a steward
to the then Earl. The account was carried on in these two books till
the end of the year 1793. Balances were struck each half year, which
were always carried on into the next half year's account. In the account

17 ADOLPHUS & ELLIS. N. S. 277

for the kftlf year ending in June, 1782, in the £r8t book, credit waa
given to the Earl of Aahbnmham for^rent received in respect of the
pretnise» in question ; and the balance was struck and entered Us follows :
"26 July, 1782. Balance due John Vernon 76t 7«. Sd." Neither
this nor aijy oth^ entry was signed by the steward ; but underneath
it was written, in a different hand, «« The above balance is accounted
for in a general statement at the end of the year's account ending
Michaelmas, 1798, entered in a subsequent book."

Feb. 18, 1796. * Ashburnham.

• John Vernon, Jun."

A similar entry was made under each consecutive half-yearly balance ;
and at the conclusion of the second book the final balance was struck,
and was entered thus :

«i Balance due to John Vernon 762. 19«. 7(2.

(( 18th Feb. 1795. The above account was this day settled ; and the
balance, seventy-six pounds and nineteen shillings and seven pence, due
thereon to John Vernon, Senior, was paid by the Earl of Ashburnham
to the undersigned John Vernon, Junior, and the vouchers delivered up
to his Lordship. Ashburnham.

John Vernon, Junior."

^These books were tendered in evidence by the lessor of the ^4^970
plaintifil It was objected, that they were not signed by John *-
Vernon the steward, and that no evidence was given of the character
of John Vernon, Junior, who it was said might never have existed, or
might still be alive.

The learned Judge received the evidence ; and the plaintiff had the
verdict.

In last Easter Term, 21 Allen obtained a rule nisi for a nen trial on
the ground of the improper reception of this evidence.

Evans and Gfrove now showed cause. — The signature of John Vernon,
Junior, bears date fifty-five years before -the trial ; and the book in which
it was found was produced from the proper custody. No further proof
was necessary ; Wynne v. Tyrwhitt, 4 B. & Aid. 376 (E. C. L. R. vol.
6). Then John Vernon, Junior, charges himself with the receipt of
76/. 19«. 7<2. in 1795 ; and, from the manner in which the entry is made,
proof that the balance in 1795 was correct is proof that the balance in
1782 which is brought down in the account is also correct. The case is
not therefore like De Rutzen v. Farr, 4 A. & E. 58 (E. G. L. R. vol. 81),
where the person signing neither charged himself, nor appeared to have
authority to charge his principal.

T. AUen, contrjl. — John Vernon, Junior, may have been alive. The
lapse of more than thirty years dispenses with the proof of his hand-
writing ; but it does not show that he is dead, unless some search be
made for him.

27S DOE d. LORD ASHBURNHAM v. MICHAEL. T. T. 1861.

Lord Campbell, C. J. — I am of opinion that this rule should be dis-
charged, as the evidence was properly received.

*The first objection was that John Vernon, Junior, was not

*279]

shown to be dead. Bat I think, seeing that the entry bears date

more than fifty years before the trial, proof of the death of the person
signing it was unnecessary. Under such circumstances, in the absence
of evidence to the contrary, it is to be presumed that he is dead. After
the lapse of thirty years it is unnecessary to call an attesting, witness.
And, if the lapse of fifty-five years is not suQicient to afibrd a presump-
tion of the death of a person signing an entry, it is diflScult to say what
period would suflSce.

Then comes the question, whether this entry signed by John Vernon,
Junior, is evidence. As it is now explained, I think it is. I do not
find fault with the decision in De Rutzen v. Farr. As soon as we see
that Protheroe, the clerk in that case, neither charged himself, nor was
shown to have authority to make his principal liable, it appears that the
decision was right. But here John Vernon, Junior, does charge him-
self with the receipt of money for which he is personally accountable.
Besides, if it were necessary to resort to that, I think we cannot reject
the part of the entry which is signed by the late Earl of Ashburnham,
and in which John Vernon, Junior, is accredited in accouftting with him.

Pattbson, J. — This is a peculiar case, and must not be taken as an
authority that any person signing an ancient document for another
thereby makes it evidence. There were no contemporaneous signatures
to the entries in 1782, charging the steward John Vernon, Senior, with
*9ft01 *^® receipt of these rents ; but they were brought down ♦into a
-' balance ; and that balance was carried on in the account till, in
1795, there was a general settlement, when the final balance was found
in favour of the steward. Then John Vernon, Junior, signs an entry
as receiving that balance for John Vernon, Senior, and Lord Ashburn-
ham signs it also, treating John Vernon, Junior, as a person accredited
by and acting for the steward. ■ This is a peculiar state of facts, very
different from the case of De Rutzen v. Farr.

John Vernon, Junior, does not profess to charge himself with the
receipt of the rents before 1782 : but he does charge himself with the
receipt of the balance in 1795 ; and that included these items.

CoLBRiDGB, J. — I agree that under the special circumstances the
books were properly received in evidence. These are not entries made
by a mere stranger, and found by accident. They are regular books of
considerable antiquity, and produced from the proper custody. In them
appears the entry of a transaction, not merely of an accountant striking
a balance, but of the lord and the accountant going back, and the
accountant receiving the balance, so that the lord in effect accredits him
as the party accounting.

17 ADOLPHUS k ELLIS. N. S. 280

Eblk, J.) had left the Coart before the conclusion of the argument.

Rule di8charged.(a)

(a) Keported by C. Blaokbarn, Esq.

' *SIMS and Another v. MARRTAT. June. 6. [*281

Defendant, executor of a deoeMed aathdr, M., wrote to pUintiff, a pablisher, referring to a pre-
Tious offer from plaintiff to defendant to give 50^ for the copyright of one of M.'s works called
Y., which defendant said be had accepted. Defendant then added : " I possess but few of the
^Pjnght* of the earlier portion of M.'s works :" <' I will let you know in a few days those of
the works that belong to me that I feel disposed to offer" you : " in the mean time I shall be
gUd to know if you received my last letter accepting your offer for V., and, if not, whether
yon still hold the same proposal." Plaintiff paid defendant 60{., and bad trom him a receipt in
tfae$e terms : " Received from St" (the pinintiff ) " bOl. for permission to publish M.'s work, V.,
•0 long as the copyright may endure. The right to be exclusively" S.'s " own for ten years
from this date." M. in his lifetime had agreed with B., another publisher, to sell him the
copyright of V. No transfer had been executed ; and the agreement between M. and B., which
was in writing, was unattested. This was unknown to defendant and to plaintiff. B. opposed
the publishing of the work by plaintiff, who then brought an action against defendant on a
warranty of title in the copyright :

Held, that there was in this case an express warranty of title oontained in the letter and receipt.
Qnctre, whether on the sale of snch a commodity as a oopyright the law would imply a war-
ranty of title ?

Held, also, that B. bad an equitable title to the oopyright

The Court takes judicial notice of the law of England as administered in the Courts of Equity.

Assumpsit. The declaration recited that the plaintiiTs were the pro-
prietors of a literary periodical, called the Parlour Library, and werje
desirous of publishing therein a work whereof one Frederick Marryat,
then deceased, was the author ; and that the defendant was the son and
executor of the said F. Marryat. It then stated that, in consideration
that plaintiffs would pay defendant 50Z., for license and permission to
publish the said work of F. M. in the said literary periodical, defend-
ant promised plaintiffs that he, defendant, then had sufficient right, title,
and authority, at law and in equity, to sell and grant such license and
permission. Averment that plaintiffs paid the said sum of 502. Breach ;
that defendant at the time of the said contract had not such right, &c.,
as aforesaid, but that, on the contrary thereof, at the time of the mak-
ing of the said contract, one Richard Bentley was equitably the pro-
prietor of the Copyright of the said book or work, and had the sole
right, title, and authority to grant such ^license and permission r^noo
to publish the said book or work. Allegation of special damage. ^

Pleas : 1. Non assumpsit. 2. That defendant had such sufficient right,
title, and authority, in accordance with his said contract, as alleged in
the declaration. 3. That Bentley was not equitably the proprietor of
the said copyright, nor had he the sole right, &c., to grant such license
or permission as alleged in the declaration. Issues thereon.

On the trial, before Lord Campbell, C. J., at the Middlesex sittings

282 SIMS V, MARRYAT. T. T. 1851.

after last Michaelmas Terra, a verdict was found by consent for the
plaintiffs, for 4252. damages and 40«. costs, subject to the opinion of
this Court on the following case.

The plaintiffs in this cause are booksellers and publishers at Belfast;
the defendant is the son, heir-at-law, and sole executor of the late
Captain Frederick Marryat, who was the author, among other hooka
and works, of that mentioned in the declaration, called «' The Adven-
tures of Monsieur Violet," which was first published in or about 1849.
Captain Marryat died on 9th August, 1848, having on 14th March,
1848, duly made and published his will, whereby he gave and derised
all his real estates and personal estate whatsoever and wheresoever
(with certain exceptions not including the copyright of any of his bool^
or works) to the defendant, his heirs, executors, administratora and
i|8signs, absolutely and for ever. The defendant proved the will on
25th October, 1848.

The plaintiffs are the proprietors of a periodical work called " The
Parlour Library," which is published in monthly volumes, each nsually
containing some popular work of fiction. In February, 1849, the plain-
*^R^1 ^'^^ ^^^^ *desirous to publish in The Parlour Library "The
^ Adventures of Monsieur Violet," and communicated the fact to
the defendant by letter ; but the plaintiffs are unable to adduce legal
evidence of the terms thereof. On 1st March, 1849, the defendant in
reply wrote and sent to the plaintiffs the following letter. " Gentle-
men— I shall be very happy to treat with you respecting the copyright
of * Monsieur Violet.' — ^Yours, very truly, Frank Marryat." On 23d
August, in the same year, the defendant again wrote and sent to the
plaintiffs the following letter. <« Gentlemen — You formerly made me
an offer of fifty guineas for the exclusive right of publishing in yonr
Parlour Library for ten years Captain Marryat's work < Monsieur Vio-
let,' which offer I accepted, and wrote to you to that effect : I possesa
but few of the copyrights of the earlier portion of Captain Marryat*9
works ; and they are many of them already published in a cheap edi-
tion : I will let you know in a few days those of the works that belong
to me that I feel disposed to offer for your Parlour Libarary ; in the
mean time I shall be glad to know if you received my last letter ac-
cepting your offer for " Monsieur Violet," and, if not, whether you still
hold the same proposal. I remain," &c. "Frank Marryat." ''I
perceive, on reference to your letter, that fifty pounds was the snin
offered." The plaintiffs thereupon paid to the defendant the sum of
50L ; and the defendant gave them the following receipt : «< Langham,
August 25th, 1849. — Received from Messrs. Sims & M'Intyre fifty
pounds sterling for permission to publish Captain Marryat's work, ^ The
Travels of Monsieur Violet,' so long as the copyright may endure : that
right to be exclusively their own for ten years from this date. Frank

17 ADOLPHUS & ELLIS. N. S. 288

S. Marrjat." ^Immediately after tke payment of the 502., the r^coo^
plaintiffs took proceedings to prepare the said wArk for the press ^
00 as to form the November volume of The Parlour Library. The case
did not state the particular expenses incurred by them, as it was agreed
that, if the Court should be of opinion that the plaintiffs were entitled
to recover, the verdict for 4252. was to stand*

Id the month of September, after the plaintiib had made very con-
siderable progress in their said proceedings, and had advertised the
AdFentures of Monsieur Violet as being one of the intended volumes
of The Parlour Library, they received a notice from Mr. Bentley for-
bidding them to proceed with the publication, and claiming to be en-
titled to the copyright of the work. A correspondence ensued between
tbe parties, which resulted in Mr. Bentley persisting in his claim ; and
the plaintiffs abandoned their intention of publishing the book. It was
made to appear to them, as the fact was, that, prior to the 29th May,
1846, a negotiation took place between the late Captain Marryat and
the said Richard Bentley touching the subject-matter of the instru-
ment hereinafter next mentioned, which resulted in the following instru-
ment being signed by the late Captain Marryat, and delivered by him
to the said B. Bentley.

<< Memorandum of agreement, made the 29th day of May, 1846, be-
tween Captain Marryat, B. N., C. B., and of Langham, Norfolk, on the
one part, and Richard Bentley, of New Burlington Street, publisher,
on the other part. The said Captain Marryat hereby agrees to assign
over all the remaining copyright of and in the eight under-mentioned
works written by the said Captain Marryat (the said copyright being at
this ^present time his exclusive property to use as he may think r^ooe
proper) to the said R. Bentley : The eight works thus to be as- *-
signed are as follows : — 1. The Phantom Ship. 2. The Poacher. 8.
The Dog Fiend. 4. Percival Keane. 5. 011a Podrida. 6. Diary in
America. 7. Diary in America, second part. 8. Monsieur Violet's
Adventures. Each and all of which works, the previous editions being
sold off, are available to be used in any manner the said R. Bentley
may choose, with the exception of The Phantom Ship, which will bQ
available at the expiration of seven years from first publication. And
the said R. Bentley agrees to purchase all the remaining copyright and
author's interest in the aforesaid works at and for the sum of SOOZ. ;
to be paid to the said Captain Marryat in his the said R. Bentley's
promissory notes at six and nine months, for 150Z. respectively, on the
execution of the present memorandum of agreement. A deed of as
Bignment of the said copyright by the said Captain Marryat to the
said R. Bentley (such assignment to be at the expense of the said R.
Bentley) to be executed within the ensuing month of June." Signed,
"Frederick Marryat."
The said R. Bentley accepted the said instrument from the said Cap-

285 SIMS V, MARRY AT. T. T. 1851.

tain M., and assented thereto, and gave to the said Captain M. the said
promissory notes, whicd were paid at maturity. Although the said in-
strument was stamped as an agreement at the time of the trial of this
action, yet it was not stamped when it was signed by the said Captain
M., nor was his signature attested. The said instrument was not sealed
by Captain M. Counsel of eminence at the equity bar were prepared
to prove at the trial of this cause that, in their opinion, although the
*9ftRl l^^'Q^^Q^io'^®^^ agreement was not ""attested so as to vest the
^ legal right to the copyright in the said R. Bentley, yet a Court
of equity would have decreed Captain M. in his lifetime, or his repre-
sentative after his death, specifically to perform that agreement, and to
concur in an entry at Stationers' Hall so as to have given the said B.
Bentley a clear legal title to the copyrights of the works mentioned in
the agreement.

The work mentioned in the above instrument called « Monsieur Vio-
let's Adventures" is the same work as <^ The Adventures of Monsieur
Violet" mentioned in the declaration. The plaintiffs do not impute to
the defendant that he was aware of the existence of the above instru-
ment at the time of the receipt of the said 50/. from the plaintiffs. No
entry of the said instrument, nor any reference to the same, has at any
time been entered in the Book of Registry mentioned and referred to
in sects. 11 and 13 of stat. 5 & 6 Vict. c. 45; nor has any entry been
made in the said Book of Registry of any assignment to the said R.
Bentley, or any other person, of the copyright of the said work called
<<The Adventures of Monsieur Violet;" nor is such a copyright in any
way referred to in such Book of Registry ; nor are the plaintiffs' names
in any way mentioned or referred to in the said book in connexion with
the said copyright, as having license or permission to publish the said
work, or otherwise. The defendant denies that he gave any such war-
ranty as that alleged in the declaration. The plaintiffs, however, con-
tend that the foregoing facts sufficiently prove such warranty. The
defendant also contends that he has also a good defence to this a tion
on the second and third pleas.

The Court was to have power to draw any inference of fact which a
*9ft7l J"^7 might have drawn; also to order *any amendment of the
^ pleadings which the Lord Chief Justice might have ordered at
Nisi Prius. A copy of the pleadings accompanied, and was to be
deemed part of, the case. If the Court should be of opinion that the
plaintiffs were entitled to recover, the verdict was to stand ; if the
. Court should be of a contrary opinion, a nonsuit to be entered. ^

The case was argued in this term ; June 3d(a) and 6th.(i)

Stugh Hilly for the plaintiffs. — The questions that arise are distinct;

(a) Before Lord Campbell, C. J.» Patteton and Brl«, Js. ; Coleridge, J., was »t GnildhalL
{b) Bofoire Lord Campbelli C. J., Patteson, Coleridge, and Erie, Jt.

17 ADOLPHUS & ELLIS. N. 8. 287

first, whether the defendant gave a warranty of title to the copyright ;
secondly, whether Bentley had the equitable interest in the copyright.
As to the first question : a warranty of title is implied by law on
' sach a sale as this : but, further, there was in the present case an
express warranty. There are no cases as to the extent to which the
law implies a warranty of title on a sale either of a copyright or of a
license to print a book : the case must be decided by its analogy to
others. It is clear that on a sale of real estate the vendor contracts
to make a good title. It is true that, when the conveyance is actually
executed, there is no covenant beyond what may be expressed in the
deed ; for expressum facit cessare taciturn ; and so it may be that, if,
in the present case, a transfer of the copyright under seal had been
executed, the plaintiffs must have relied on the covenants in that trans-
fer: bat the contract here remained executory. So in sales of per-
sonal property, where the property passes, there is, according to p^qoq
*the reasoning of the Court of Exchequer in Morley v. Atten- *■
borough, 3 Exch. 500, f (a) warranty of title implied by the mere sale ;
bat in the judgment in that case (6) a distinction is made where the
contract is executory. The principle of that distinction prevails in
sales of shares in public companies ; Hibblewhite v. M'Morine, 6 M. &
W. 200,t Shaw v. Rowley, 16 M. A; W. SlO.f [Patteson, J.— Those
are not bargains for the sale of specific things ; the vendor is to supply
shares ; and it is quite immaterial to the purchaser which specific shares
are supplied.] The contract here is not executory in the sense that
the thing to be transferred was unascertained ; but it is executory in
so far that a subsequent conveyance was necessary to pass the copy-
right. But, in the present case, the bargain is contained in written
documents ; asd on the fair , construction of these the defendant
expressly warrants the title.

The second question is 'one of equity. [Lord Campbbll, C. J. — It
was a mistake to propose adducing evidence as to the doctrines of
equity. Equity is not a foreign law to be proved by evidence, but
part of the law of this realm of which the Judges take judicial notice,
and which is to be established by argument, and by citing authorities.
It is different as to the practice in equity.] A Court of equity would,
in this case, have decreed a specific performance in favour of Bentley,
on the ground that the contract was for the sale of the particular copy-
n'ght, for the breach of which contract the remedy at law was inade-
quate; Adderly v. Dixon, 1 Sim. k Stu. 607. And, had the plaintiffs
proceeded to publish the work, Bentley *roight have obtained an

injunction to prevent them ; Sweet v. Cater, 11 Sim. 572.

[*289

CAanneUj Serjt., contri. — This is not an action for money had and
received to recover the price paid for the right supposed to be sold to

(a) See Cfaapmaa «. SpeUer, U Q. B. 021 (B. C. U R. vol. 6S). '

(6) 3 Exch. 60».t

VOL. XVII. — 25 R

SIMS V. MARRYAT. T. T. 1851.

the plaintiffs, but an action for large damages consequential on the
breach of an alleged warranty of title. The warranty declared on is
that the defendant had a good title both at law and in equity : is sach
a warranty implied or proved ? It is not quite clear whether the coo-
tract was to sell the copyright, or merely to give a license to print.
Either way, it is for the sale of a specific thing; and, according to
Morley v. Attenborough, 3 Exch. 500,t no warranty of title is b; the
law of England implied merely on the sale of a specific thing. The
distinctions made in the judgment of the Court, of Exchequer in that
case do not affect the defendant. Where a contract is to sspply things
of a particular description which the vendor is to select, there is good
reason why the vendor should be held to warrant the title ; and the
Court of Exchequer refer to contracts executory in that sense. Again,
where a chattel is exhibited for sale under such circumstances as amoont
to an assertion that the vendor will give a title, as in a retail shop, a
warranty may be inferred. But in the present case the defendant was
an executor ; as such he had those incorporeal rights which his testator
had not disposed of; and he sold the copyright as a copyright of his
testator ; his position was exactly analogous to that of the pawnbroker
who sold the harp as an unredeemed pledge ; Morley v. Attenborough.
^nckfft Had a specific *performance been decreed, the Court of Equity
^ would not have ordered the defendant to covenant for title abso-
lutely, but to covenant as an executor usually does, against his own acts
and omissions only. To that extent he may well be held to warrant
the title : but neither by express words nor by implication does he war-
rant further ; Peto v. Blades, 5 Taunt. 657 (E. C. L. R. vol. 1).

Then as to Bentley^s right. Had he gone into Equity, the defendant,
who had the legal title, must have been made a party; and he might
have urged that Bentley in not giving him notice of the assignment
had been guilty of laches. That would not have barred Bentley from
equitable relief; but it would have been made a condition that he should
do equity by indemnifying the defendant against the consequences of
bis laches. At all events the last issue should be found for the defend-
ant, as it is clear that Bentley had not the legal title, and consequently
had not «« the sole right, title, and authority to grant such license and
permission." [Lord Campbbll, C. J. — The whole plea must be taken
together ; and then it is clear that the averment means sole right as
equitable assignee.]

Hitgh Hill was not called upon to reply.

Lord Campbell, C. J. — ^I am clearly of opinion that the plaintiffii
are entitled to the judgment of the Court. I do not think it necessary
to inquire what the law would be in the absence of an express warranty.
.On that point the law is not in a satisfactory state. The decision in
Morley v. Attenborough, 3 Exch. 500,t was that a ^pawnbroker,

♦291]

selling an unredeemed pledge as such, did not warrant the title

17 AD0LPHU8 & ELLIS. N. 8. 291

of the pawnor. Of that decision I approve : but a great many qnes-
tioDB, beyond the mere decision, arise on the very able judgment of the
learned Baron in that case, which I fear must remain open to contro-
Tersy. It may be that the learned Baron is correct in saying that, on
t sale of personal property, the maxim of caveat emptor does by the
law of England apply : but if so there are many exceptions stated in
the judgment which well nigh eat up the rule. Executory contracts are
said to be excepted ; so are sales in retail shops, or where there is
a Qsage of trade : so that there may be difficulty in finding cases to
which the rule would practically apply. But in the present case we
ha?e the documents before us to which we must ]ook for the contract.
We are to look, not at the preliminary negotiations, but at the final
contract, which is proved by the correspondence, and in the receipt.
And, doing so, I cannot have any doubt that the defendant, in ignorance
of what his father had done, and without the smallest blame attaching
to him, and really believing that the title to this copyright was in him,
did warrant that it was in him, and did warrant this to the plaintiffs as
purchasers of the copyright from him. The first letter set out in the
ease offers to treat with the plaintifis respecting << the copyright of
* Monsieur Violet.' " The copyright of a work is the exclusive right to
oialtiply copies of a work, not merely a right to do so in common with
others. The answer to that letter is not given ; but there is a second
letter in which the defendant writes : «< You formerly made me an offer
of fifty guineas for the exclusive right of publishing in ^our Parlour
Library for ten years Captain Marryatt's work < Monsieur Violet,'
*which offer I accepted, and wrote to you to that effect." Here r^iooo
is an acknowledgment of a contract whereby the defendant sold ^
"the exclusive right of publishing." How could he do so unless he
had it ? Is not this an affirmation that the copyright of « Monsieur
Violet" did belong to him, and to him only, and that he had sold that right ?
If we were confined to the words of the receipt alone, I think they would
of themselves amount to an express promise that the plaintiffs were to
have thu exclusive right so long as the oopyright should endure ; and is
not that promise broken if the defendant had not the exclusive right to
give them ? It appears therefore to me that in this case there was an
express warranty, and that we are relieved from considering the more
general question.

As to the other points. I have no doubt that the Judges of a common
law Court take judicial notice, not only of the doctrines of Equity, but
of those of every branch of English law, when they incidentally oome
hefore them. When a question of ecclesiastical law arose, it used to
be the practice to move for two Doctors. Those learned persons when
they came were treated with great respect ; but they came as advocates
to argue the law, not as witnesses to state it. It has sometimes been
said that we know nothing of Parliamentary law: but, if a question of

SIMS V. MARRYAT. T. T. 1851.

Parliamentary law does come before us incidentally in a matter over
which we have jarisdiction, we must decide it, and must inform oursehes
as we best can. So in a question of Equity. If we do not know the
doctrine of Equity, we are supposed to have the means of learning it.
In the present case I have no doubt that Bentley had the equitable
interest in the copyright, and that, if the plaintiffs had not obeyed
*9Q^l *^^ notice, he would have obtained an injunction; Sweet v.
^ "^J Cater, 11 Sim. 572.

Patteson, J. — ^I agree with my Lord in thinking that the general
doctrine as to implied warranty of title on contracts for the sale of
personal property, whether executory or not, does not arise in this case,
as we cannot but see that there was an express warranty between the
parties. In many of the earlier cases the question is whether an
-affirmation was a warranty. Lord Holt, in Medina v, Stoughton, 1 SalL
210, S. C. 1 Ld. Raym. 593, says that, <( where one having the posses-
sion of any personal chattel sells it, the bare affirming it to be his
amounts to a warranty." Much more is this the case if he affirms that
he has the right to convey the exclusive title to it. We cannot take
the receipt as the only evidence of the contract, but must look at the
correspondence also. Now I think the second letter set out shows very
strongly that the defendant meant to say that Monsieur Violet was one
of the works which he there mentions, one of the works of his late
father of which the copyright belonged to him. Coupling that letter
with the receipt, I think there is an express warranty, making it un-
necessary to consider the somewhat nice and minute points which were
discussed in the judgment in Morley v. Attenborough, 8 Exch. SOO.f

As to the other point. Sweet v. Cater is decisive that there was an
equitable assignment to Bentley ; and the averment in the plea is con-
fined to an equitable right. There' are cases in which a right to recover
the price as money had and received on a consideration which has failed
«9Qll ^^^^ he a sufficient remedy ; but the ""present is a case in which
^ the special damage from the breach of warranty is considerable.

CoLBRiDQE, J. — ^I did not hear the whole argument : but, upon so
much as I heard, I agree with what has been said.

Erlb, J., concurred. Judgment for plamtiff8.(a)

(a) Reported by C. Blaekburn, Esq.

The invalidity of a patent will not to the validity of the patent and in the
entitle a purchaser to repayment of the absence of fraud : Hiatt v. Twomej, 1
price, where there was no covenant as Dev. & Bat. Ch. 315.

17 ADOLPHUS & BLLIS. N. S. 294

WILTON, Executor of MARY STINTON, v. DUNN. Jutw 6.

Uie ud oMapatioo. Pie* : tb»fc the oooapatioii of the premiaes wm bj the Uave of plaintiff
who wu mortgagor in possession : that, ajfler sach ooeupation, the mortgagee, who was entitled
to the land during the whole period of occupation, gave notice to defendant, claiming the
mesne profits: that defendant until such notice was ready and willing to pay plaintiff: and
that, from the time of such noUee, he was liable to paj the mortgagee.

Held, no defence at law. Qvcsre, whether actual payment to the mortgagee under pressure of
this elaim would have been a defence.

Assumpsit bj the executor of Mary Stinton. 1st count for use and
occupation of certain premises, and undivided shares of premises, in the
time of the testatrix. 2d cbunt on an account stated with the testatrix.
3d coant on an account stated with the executor.

Plea, as to 1002. parcel of the moneys in the 1st count, lOOZ. parcel.
of the moneys in the 2d count, and 100/. parcel of the moneys in the
3d count, that Mary Stinton was seised in her demesne as of fee tail of
and in the premises in the first count mentioned, and, being so seised,
by indenture enrolled, conveyed them to the use of William John Holt
and Henry Wilton the younger, their executors and assigns, for the
term of ninety-nine *year8, upon trust, at the request of Mary r^gqc
Stinton, to raise a sum of money by mortgage ; and, subject to ^
the mortgage term, to uses over ; whereby Holt and Wilton by virtue
of the statutes became possessed of the premises for the term of ninety*
nine years. The plea then showed an assignment by Holt and Wilton
of the residue of the term of ninety-nine years to Louisa Smith, by
indenture, by way of mortgage, to secure the sum of 2002., with the
common proviso that if the 200/. was paid within six months the assign-
ment should be void. Averments that the six months elapsed, and that
the 200/. was not paid and still continued unpaid. The plea then pro-
ceeded to aver that the said Louisa Smith did not, nor did any assign
or assigns of L. Smith, enter upon or take possession of the said
undivided parts and shares at any time before the commencement of
this suit ; but, from the time of the making the last-mentioned indenture
until the defendant became indebted to the said Mary Stinton in the
said first-raentioned parcel, the said M. S., as mortgagor in possession
but not otherwise, had the control, management, and disposition of the
same undivided parts and shares : that, while the said M. S. had such
control, management, &c., and while the said M. S. had no other title
to the same than as such mortgagor in possession, defendant, at his
request made after the making of the last-mentioned indenture, to wit,
on, &c., and, by the sufferance and permission of the said M. S., granted
after the making of the said last-mentioned indenture, to wit, on, &;c.,
for the time in the first count mentioned, which commenced after the
making of the last-mentioned indenture, held, occupied, and enjoyed
the said undivided parts and shares as in the first count mentioned, and

2»6 WILTON V. DUNN. T. T. 1861.

«9Qftl ^^61^0^7 became and was indebted to the said M. S. in *the said

•^296]

sum of 1002., parcel as first aforesaid. That the said LoaiM

Smith, as sach mortgagee as aforesaid, was, under and by virtue of the
last-mentioned indenture, from the time of the making thereof until and
during the whole of the said time while the defendant so held, &c., u
aforesaid, entitled to the immediate actual possession of the said an-
divided parts and shares, and, at and from the time when defeDdant
became so indebted as last aforesaid, and until and at the commence-
ment of this suit, was, and yet is, entitled by action of trespass to
recover from defendant the value of the profits of the said undivided
parts and shares for and in respect of the said time while the said
defendant 90 held, occupied, possessed, and enjoyed the same as afore-
said. That, after defendant became indebted to the said M. S. in the
said parcel, and before the commencement of this suit, to wit, on, &g.,
the said Louisa Smith, then being justly entitled to the said mortgage
debt of 200Z., and to recover the value of the said profits as aforesaid,
assigned to Edward Gaubert all her right to and interest in the said
mortgage debt of 2002., and the value of the said profits which she the
said Louisa Smith was so as aforesaid entitled to recover from the
defendant in respect of the time while he so held, occupied, possessed,
and enjoyed the said undivided parts and shares, and authorized the
said E. Gaubert to use the name of the said Louisa Smith for the
recovery of the value of the last-mentioned profits in whatever manner
might be necessary. That afterwards, and before the commencement
of this suit, to wit, on, &c., the said E. Gaubert gave defendant notice
of the said assignment to him, and required the defendant to pay to him
the said E. Gaubert the said first-mentioned parcel in which the defend-
*SQ71 ^^^ ^^ ^^ indebted as aforesaid, and which *did not exceed the
^ amount of the value of the profits, which amount the said E.
Gaubert was then and still is entitled to recover in the name of the said
Louisa Smith from the defendant. That, from the time when defend-
ant became indebted to the said M. S. in the said first-mentioned parcel
until and at the time when the said notice was so given to him as afore-
said, defendant was ready and willing to pay the first-mentioned parcel
to the said M. S. And, that, from the time when the said notice was
so given hitherto, defendant has been and yet is liable to pay the same
to the said E. Gaubert. Averment that the said accounts in the second
and last counts respectively mentioned, so far as they relate to the said
secondly and thirdly mentioned parcels, were so stated as in the decla*
ration mentioned of and concerning the first-mentioned parcel, and of
and concerning no other money whatsoever. Verification.

Demurrer, assigning as causes that the plea was an argumentative
denial : and others which it is not necessary to notice. (a) Joinder.

(o) Clea§by, for the plaintiff; in the ooune of bia argument relied on seyeral objections to th«
manner in wbicb tbe title waa pleaded : but, aa the Court decided irrespeotirelj of them, tb«j
are not Airther noticed.

17 ADOLPHUS & ELLIS. N. S. 297

Oleoihfy for the plaintiff. — AssumiDg the plea to be well pleaded in
form, it is bad in sabstance. All the cases on the sabject are collected
io the notes to Moss v. Gallimore (1 Doug. 279) in Smith's Lead. Ca.,
1 Smith's Leading Gases, 810. It was supposed in Pope v. Biggs, 9 B.
A C. 245 (E. C. L. R. vol. 17), and Waddilove v. Barnett, 2 New Ga.
538 (E. C. L. R. vol. 29), that notice, given to a person who had been
let into possession by the mortgagor after the legal ^estate had r^e^qa
been coDveyed to the mortgagee, requiring him to pay his rent ^
to the mortgagee, entitled the latter to recover the arrears of rent : but
that is overruled ; Partington v. Woodcock, 6 A. & E. 690 (E. G. L. R.
vol. 33), Evans v. Elliot, 9 A. & E. 842 (E. G. L. R. vol. 86). It is
clear that the notice in this case cannot change the contract under
which the defendant had already become indebted to the testatrix, so
88 to eDable Louisa Smith to sue on that contract. [Patteson, J. —
Why do you say that is clear ? I, indeed, think it impossible that the
mortgagee could under such circumstances recover in an action on con-
tract : but other Judges entertain a different opinion. I never could
g understand it. Erle, J. — The plea here does not rest the defence on
the supposed effect of the notice in enabling the mortgagee to sue on
the contract, but on the ground that the defendant may be compelled
to pay this very sum as mesne profits, and that he has received notice
of that liability ; but it is liability only. He does not say he has paid
the money to any one. Lord Gampbell, G. J. — Supposing that there ^
are no formal objections to the plea, the question raised on this record
seems to be, whether a liability of this kind, which may or may not end
in an actual payment, is a good defence to an action.] In all cases in
which there is an outstanding legal estate, the tenant in possession may,
in the same manner, be obliged to pay the mesne profits to him who has
the right to bring ejectment. Therefore, if this plea is good, a tenant
should always be allowed to plead that the legal estate is outstanding
in one who claims the rent, and threatens to bring ejectment. Such a
plea is bad even when the tenant has under compulsion *of that r^onq
threat paid the rent ; Boodle v. Gampbell, 7 M. & G. 886 (E. cA
L. R. vol. 49). [Erlb, J. — If we take notice of what a mortgage is in
equity, the mortgagee is privy to the demise by the mortgagor in pos-
session. Lord Gampbell, C. J. — There is great difficulty in our
noticing, at law, the nature of the equitable interest of the mortgagor.
When there is a legal charge on the land, as in the case of a head land-
lord and a mesne tenant, an actual payment of the head landlord's rent
by the puisne tenant, under pressure of a distress, would be an answer
pro tanto to an action by the mesne tenant for his rent, on the principle
that the tenant below has been obliged to pay a charge on the land
which his intermediate landlord ought to have paid. But a mere liabi-
lity to be distrained on would be no answer.]
Keatingj contrd.. — The relation between mortgagor and mortgagee

WILTON V. DUNN. T. T. 1861.

jdX law is that the mortgagor is tenant at sufferance to the mortgagee.
[Patteson, J. — ^I can never agree to that. I know there are loose
expressions in the books as to his being tenant at will, or tenant at suf-
ferance : but he is not, in truth, a tenant at all.] At all events the
mortgagee is entitled to recover the rent from the tenant, as mesne
profits. [Lord Campbell, C. J. — He may bring ejectment and recover
the mesne profits with or without notice. Tour argument therefore
goes so far as to say that the existence of the unsatisfied mortgage is
in itself a bar. Actual payment may be good on the ground that the
mortgagee is the authorized agent of the mortgagor to receive the rents:
but is there any precedent of a plea like this? A defendant may
4" ^001 *^^ many cases be in great danger from cross claims, from which
^ a Coiirt of law cannot relieve him. The threat of the mortgagee
may afford a ground for going into equity for relief: but can it he a
plea in bar at law ? Waddilove v. Barnett, 2 New Ga. 538 (E. C. L.
R. vol. 29), does not go so far as we must go if we support this plea.
Patteson, J. — In Mr. Smith's note (a) to Moss v, Gallimore, Doug. 279,
it is said : <( As the mortgagor ceases to be entitled to the rents upon the ^
mortgagee's giving the tenant notice, it follows that the mortgagor can-
not afterwards maintain any action for use and occupation against him,
either for rent which accrued due after the notice, or for rent which
accrued due before the notice but was unpaid at the time when the
notice was given. But there is a difference between the modes in which
the tenant must plead in the former and in the latter case. In the
former case he should plead Non assumpsit, and will be allowed to give
the mortgage ^nd notice in evidence, for < when the mortgagee gave
notice that the future rent was to be paid to him, it follows that the
defendant ceased to occupy by the permission of the mortgagor, bat by
the permission of the mortgagee;' and, of course, such a defence
amounts to a denial of the contract alleged in the declaration, which
avers the defendant to have used and occupied the land by the permis-
sion of the plaintiff, the mortgagor. But in the latter case, viz. where
the rent became due before notice, but was unpaid at the time of
notice, the tenant must plead his defence specially, for < the mortgagor
bad a right of action against the defendant up to the time when the
notice was given, and before the mortgagee required the rent to be paid
*^OTI *^^ him:' so that the tenant, by setting up this defence, con-
^ fesses that the right of action, stated in the declaration, once
existed, but avoids it by matter ex post facto, viz. by the subsequent
notice from the mortgagee." The propositions cited by Mr. Smith are
from Waddilove v. Barnett. I think it a grave question whether the
latter is not a fallacy. The point in truth did not arise in Pope v.
Biggs, 9 B. & C. 245 (E. C. L. R. vol. 17) ; what fell from the Judges
there were dicta merely. And I cannot comprehend how a right of

(a) 1 Smith't Leading Caaei, Slf b, 2d ed.

17 ADOLPHUS & ELLIS. N. S. 801

action for the rents already due should be vested in the mortgagor
before the notice, and the notice should undo that vested right of
action and set up in lien of it a right of action in the mortgagee. It
was so said in Waddilove v. Barnett ; but that case is beyond my com-
prehension.] *

Lord Campbell, C. J. — The plea is new ; and I am of opinion that
this ingenious experiment should not be sanctioned. It calls on us, as
a Court of law, to do that which we have no power to do. We cannot
protect this defendant from the threat of the mortgagee. Had the
tenant under compulsion of that threat actually paid the mortgagee
what was due, it might have been a defence. But this plea does not
allege payment : it is a plea of a mere threat which may or may not be
carried into effect. No authority has been cited in support of such
a plea ; and we ought not to make one.

Patteson, J. — I cannot see how the notice can be said to make this
money not recoverable by the mortgagor and recoverable by the mort*
gagee, without denying *that the tenant held the premises by r«q/xo
permission of the mortgagor. I do not see any way in which ^
the mortgagee could sue this tenant for rent : but it is said that he may
bring ejectment, and recover the same sum as mesne profits, and that
he has threatened to do so : that, however, is no plea at law.

Erlb, J. — Had it been pleaded that the tenant actually paid the
mortgagee under this threat, I should have been inclined to support the
plea. There has been so much doubt as to the legal situation of mort-
gagor in possession and mortgagee, that I say no more than that I
think such payment might be a defence. But, as far as I can see on
this plea, the present tenant may intend, after having enjoyed the
land, to pay neither mortgagor nor mortgagee.

Judgment for plaintiff.(a)

(a) Reported bj C. Blaokbarn, Esq.
See, aa to the right of the mortgagee oot of poisesslon to reooyer mesne profits, Turner v.
Cameron's Coalbrook Steam Coal Company, 5 Exch. 932, f and Litchfield «. Ready, 5 Ezch. 939.f
8m also Moantnoy «. CoUier, 1 B. A B. 030 (E. C. L. R. vol. 72).

A mortgagor cannot maintain an and profits then due and unpaid as well

action for the mesne profits before actual as those which may subsequently accrue,

entry, although the condition has been and the mortgagor becomes entitled to

broken and he has commenced an action them: Ibid.

to foreclose: Wilder v, Houghton, 1 It has never been understood that

Pickering, 89 ; Gibson v. Farley, 16 such a privity exists, as that a mortga^

Msu». 280 ; Majo v. Fletcher, 14 Pick, gee can compel the tenant of the mort-

525; Clarke v. Curtis, 1 Orattan, 289. gagor to pay him the rent, whether the

See Latimer v. Moore, 4 M'Lean, 110; lease was executed before or after the

Hutchison v. Dearing, 20 Alabama, mortgage : Myers v. White, I Rawle,

798. Notice from the mortgagee to 355 ; Weidner v. Foster, 2 Penn. Rep

tlie lessee not to pay the rents or profits 23.
to the mortgagor, intercepts the rents
VOL. XVII. — 26

S03 WILSON V, OVERSEERS OP LIVERPOOL. T. T. 1861.

*^n^i *WILSON, Esquire, Appellant, v. The Overseers of LIVER.
^^^^ POOL, and RAWDON and HORSFALL, Esquires, Respond-
ents. June 7. ^

No appeal lay against an order of jastieet nnder atat. SAO Viet c. 126, n. 59, 63 (eee tttt 16
A 17 Viot 0.- 97, 8. 98), acyudging that the settlement of a pauper iunatio sent bj parish offieen
to an Asylum eonld not be ascertained and that saeh lunatic was chargeable tii the coonty, sod
directing payment by th« ooimty treaaarer for the maintenaDce and other expenses of ths
lunatic.

Two justices of the peace for the county of Lancaster made the fol-
lowing order under stat. 8 & 9 Vict. c. 126, s. 69,(a) dated 6th August,
1850.

<« County of Lancaster, to wit. Whereas heretofore, to wit, on the
22d day of May, a. d. 1847, Henry Thompson, being a pauper lunatic,
was, at the instance of an officer, to wit, one of the overseerd of the poor
of the parish of Lirerpool in the said county, pursuant to the statute
in such case," &o., << sent from and at the expense of the parish of Li-
verpool in the said county to, and from thenceforth hitherto hath been
and still is a pauper lunatic confined in, the Lunatic Asylum for the
county of Lancaster, situate,'* &c., «but is not settled in the said parish
of Liverpool, and it cannot be ascertained in what parish the said H.
T. is settled : And whereas the county in which the said pauper was
found, within the true intent and meaning of the said statute in that
behalf, to wit, immediately before he was sent as aforesaid to the said
Asylum, is the said county of Lancaster : And whereas the overseers
of the poor of the said parish of Liverpool did, on the 5th day of July,
1850, give to Robert John Harper the younger. Esquire, the clerk of
*^Oil *^^^ peace, and to," &c. (the deputy clerks of the peace) of the
-' said county, " notice to appear for the said county before Wil-
liam Rathbone and Christopher Rawdon, Esquires, two of her Majesty's
justices,'* &c., on, &c., at, &c., <(or before any two or more justices,"
&c., « to show cause why the said H. T. should not be adjudged by the
said justices chargeable to the said county ; Now we the undersigned,
two of Her Majesty's justices of the peace in and for the said county,
being present together on the day and year and at the time and place
mentioned in the said notice, and William Cleaver of Liverpool afore-
said, gentleman, having appeared before us on behalf of the said clerk
of the peace and deputy clerks of the peace in pursuance of the said
notice : We the said justices, having thereupon inquired according to
law into the circumstances of the case, and upon due proof upon oath
before us now here had and taken, do find that all and singular the
premises are true ; and, the contrary no.t having been shown, do, upon
due proof upon oath before us also now here had and taken, hereby

(a) Repealed by stat 16 h 17 Vict o. 97, s. 1. But see, as to the matters discussed in tliii
sects. 98, 99, 108, 128.

17 ADOLPHUS & ELLIS. V. S. 804

order and adjudge the Baid H. T. to be chargeable to the said county
of Lancaster. Given/' &;c. (Aagnst 6th, 1850.)

By another order of the same date, under sect. 63 of the same act,
addressed to Christopher Moore Wilson, Esquire, the treasurer of the
count J, after reciting the facts jrhich led to the first-mentioned order,
the proceedings to obtain it, and the substance of the order itself; recit-
ing also that the said overseers had given notice to the clerk and deputy
clerks of the peace and to the treasurer that, as soon as Thompson
flhoald be adjudged chargeable to the county, they, the overseers, should
apply to two justices to make an order upon the treasurer *for p^^qA/;
payment of the after-mentioned expenses ; and reciting further *-
that the overseers did, pursuant to the said notice, apply to two jus-
tices for such order ; and that the said W. Cleaver appeared before the
justices on behalf of the clerk and deputy clerks of the peace, and of
the treasurer, in pursuance of such last-mentioned notice ; the two last-
mentioned justices (upon due proof on oath, &c.) adjudged that expense
to the amount of IZ. 10«. 6d. had been incurred on behalf of the said
parish in and about the examination of the lunatic and his conveyance
to the asylum, and that 20/. 6i. had been paid by the overseers to the
treasurer of the a^lum for the lodging, maintenance, &c., of the luna«>
tic, incurred within twelve months previous to the order ; and they
directed the treasurer of the county forthwith to pay the same to the
overseers ; and they likewise ordered him to pay a certain weekly sum
fixed by the Committee of Visitors and deemed reasonable by the jus-
tices) to the treasurer of the asylum for the future lodging, .&c., of the
lunatic while he should be confined in the said asylum as a pauper
lanatic.

Notices of appeal having been given on behalf of the county treasurer
against these orders, a special case for the opinion of this Court was
stated by consent and by order of a Judge, under stat. 12 & 13 Vict,
c. 45, s. 11.

The details of the case* need not be stated. It appeared that the
orders were duly served on 22d August, 1850. Quarter Sessions for
the borough of Liverpool, and for the county, respectively, were held
in October. The appellant served notices of appeal to the Epiphany
Quarter Sessions for the county, under stat. 8 & 9 Vict. c. 126, s. 80,
on December 5th, 1850 ; and he entered into recognisances in pursu-
ance of the ^statute on December 16th. The objection to the

appeal, on which the decision of this Court took place, was, that

[*306

no appeal lay against either- order. (a) The case concluded by stating

(a) Tbe farther objectioDs were: The respondents "also object that, if an appeal does ]i«
against either of the said orders, the Quarter sessions for the borough of Liverpool is the tribunal
to whieh soeh appeal shonld have been made | and also object that such appeal ooold only be
Dade at the Oetober Qnarter Sessions either for the eoanty or for the borough, and that the said
appeal was too lat«; and also object that the appellant did not enter into recognisances forth-
with, within the meaning of the 80th Motion of stat 8 A 9 Yiot o. 126; and also object that th«

806 WILSON V. OVERSEERS OP LIVERPOOL. T. T. 1851.

that, if the Court of Queen's Beuch should be of opinion, upon the ob-
jections or any one of them, that the appellant was not entitled to prose*
cute the appeal, judgment, in conformity with their decision, and for
such costs as the Court should adjudge, might be entered up on motion
at the County Quarter Sessions next, or next but one, after the deci-
sion : if the determination should be for the appellant, judgment for
hearing the appeal, and for costs, might be entered in like manner at
either of the last mentioned sessions, and the appeal was to be tried on
the merits at the same sessions.

Pashlej/y for the respondents. — The proceeding to charge the county
under sects. 59, 63, is not subject to appeal. The process would be
inconvenient and useless, and evidently was not contemplated by the
Legislature. Without an appeal, the county is sufficiently protected.
*^071 ^^^^^ ^^^* ^^' when the justices are to adjudicate, the *clerk of
^ the peace has notice, and may attend ; and the justices may sus-
pend their adjudication for the purpose of making further inquiry. The
order upon the county is not conclusive ; nor would a refusal of such
order, on the ground that the lunatic was settled in a particular parish,
conclude that parish. Sect. 58 empowers the justices <« at any time" to
inquire into the settlement, and, upon satisfactory evidence, adjudge
the same accordingly. And, by sect. 59, if the lunatic be adjudged
chargeable to the county, they «may at any time thereafter in-
quire as to the parish in which such lunatic is settled, and may procure
such lunatic to be adjudged to be settled in any parish." No power
of appeal ia given to the county in terms ; and the opportunity afforded
to attend and show cause before the justices makes it probable that a
subsequent appeal was not intended. [Patteson, J. — You say that,
if the clerk of the peace, at the time of that hearing, has no knowledge
on the subject, the order upon the county is good.] It is ; only another
order may be substituted if the county afterwards discover a settlement.
Then it is contended that, although the county has no appeal, as a pa-
rish has, under sect. 62, an appeal lies under sect. 80. That, however,
is against ('any order or determination of any justices under this Act,
other than orders adjudicating as to the settlement of any lunatic pau-
per, and providing for his maintenance." But the orders in this case,
which, in law, constitute one instrument, according to Regina v. Tyr-
whitt, 12 Q. B. 292 (E. C. L. R. vol. 64), do adjudicate <'as to" the
settlement, by deciding that it cannot be ascertained ; and not only as
to, but upon, the maintenance. An appeal would not lie merely against

•^808]

an order adjudging the *settlement.(a) [Erle, J. — The appeal
against the order of maintenance disposes of the order on settle-

appelUnt oanoot now dispute or object to these orders or either of them, he h»Ting h»d notice
of the intention to make the same, having been present at the time the orders respecttTelj were
made, and he not having shown sufficient cause against the making of the same orders, in th#
Judgment of the same jnltices by whom the same orders were made."
(«i) Begina v, St Pancras, 12 Q. B. 298 (E. C. L. R. Tol. M).

17 ADOLPHUS & ELLIS. N. 8. 308

ment incidentally. There is no appeal against this till the order of
maintenance is made. Then one appeal lies against the joint order.]
Sect. 80 is to be coupled with sect. 79, and is evidently limited to cases
within that clause. It gives four calendar months for the appeal, a
regulation quite anomalous in the case of appeals against orders upon
settlement and maintenance, and different from that of sect. 62,' under
which parishes and unions have their appeal. And it requires the party
giving notice of appeal forthwith to enter into recognisance to try, and
abide the order of the Court ; a condition not likely to be imposed
upon the treasurer of a county.

Peaeoeky contr^. — If these be not, strictly, orders " adjudicating as

to the settlement" of the lunatic, « and providing for his maintenance,"

an appeal lies, under sect. 80. And it is important that there should '

be such an appeal : otherwise the mere service of a notice upon the

Clerk of the peace might be sufficient in any case to throw all the

expenses of a lunatic upon the county. The parish, in such a case, is

not likely to take much interest in investigating the settlement.

[CoLBRiOGE, J. — The burden lies upon the parish, under sect. 59, of

satisfying the justices that « it cannot be ascertained in what parish"

the «< lunatic is settled." That requisite would not be fulfilled by the

mere circumstance that nothing was stated to them upon the subjcot. ]

At any rate the county ought to have an appeal. [Lord Campbell,

C. J. — Against what ?] Against an adjudication that the settlement

cannot be ascertained. [Lord Campbell, C. J. — That is merely in

vacuo. Erle, J. — The case supposed by *sect. 59 is probably r<,qnq

that of a wandering lunatic. Why should any considerable bur- *-

den of proof be thrown in the first instance upon the parish from which

he is sent to the asylum ? Lord Campbell, C. J. — The order depends

only upon his being sent from the parish, and upon the fact that his

settlement cannot be ascertained.] The Legislature cannot have

intended that two justices should determine, without appeal, as between

the county and a parish, that a pauper was not settled in the parish.

[Erle, J. — ^The justices are empowered to adjourn the inquiry if they

see a reasonable cause for doing so. Coleridge, J. — Their order, after

all, is only in the nature of an interim order.] {Peaeoek then admitted

that he coald not carry the argument further.)

Lord Campbell, C. J. — ^For the reasons which have been given, the
order mast be confirmed.
Patteson, Colbbidqe, and Erle, Js., concurred.

Judgment for the respondents.

809 REOINA «. aRBAT WESTERN RAILWAT CO. T. T. 1851.

The QUEEN v. The GREAT WESTERN RAILWAT COMPANY.

June 7.

(The GREAT WESTERN RAILWAT OOMPANT v. TILEHURST.)

Reported 16 Q. B. 879 (E. C. L. R. vol. 69).
See 15 Q. B. 1085 (E. 0. L. R. vol. 69).

.-,.T *FRANCIS ALCOCKE MASSET v. WILLIAM GOODALL
^^^^ June 10.

ABsnmprit Connt : thsi defendant bad become tenant to plaintiff on eertain tennc and stipo*
lationay and among otben, tbattbe rent tbould be payable balf-yearly, tbat defendant "sboald
net sell any straw, 4o., or manure, grown or produced upon the said farm, witbont the writtea
lioense" of the plaintiff, under oertain penalties, and ''that the penaltiee should be con-
sidered as additional rent, and should be recoverable by distress or otherwise as rent:^ Aver-
ments, that ** in consideration thereof" defendant promised plaintiff to pay all such penalties
as he might be liable to pay plaintiff aecording to the said stipulations ;" and that defendant,
without license, sold straw grown on the premises during his tenancy. Breach : non-payment
of penalties in respect thereof. Plea : that the straw was sold after determination of the
tenancy. Demurrer.

Held by Lord Campbell, C. J., and Patteson, J., that the promise to obsenre the terms one of
which was payment of penalties, was supported by the bygone oonsideration of having
become tenant on those terms, and tbat the stipulation must be construed to be not at any
time to sell straw grown during th« tenancy : Brie, J., dissentiente, and holding that the
stipulation should be ooostrued to be, not during the tenanoy to sell straw, 4e., grown during
the tenancy.

Assumpsit.— For that, whereas, to wit, on, &c., «< defendant had
become and was tenant from year to year to plaintiff of a certain farm,"
&c., <« situate,*' &c., <(at the yearly rent of 2602., and on the following
(among other) stipulations and conditions, viz. that the said rent should
be payable half-yearly on the 25th day of March and the 28th day of
September in each year ; that the defendant should not sell any hay,
straw, or fodder, turnips, or mangelwurzel, or manare, grown' or pro-
duced upon the said farm, without the written license of the landlord,
under the following penalties, that is to say, for all hay so sold a
penalty after the rate of 11. per load, for all straw so sold a penalty
after the rate of 52. per load," &c. (fixing other penalties for all turnips
or mangerwurzel and all manure so sold) : <« and that the said penalties
so made payable as aforesaid should be considered as additional rent,
and should be recoverable by distress or otherwise as rent : and, in
♦^111 <^o^Bi^^i^A^i<»^ thereof, he the defendant then promised the *plain-
-' tiff that he the defendant would pay the plaintiff all such penalties
as he the defendant might be liable to pay the plaintiff according to
the said stipulations and conditions for and in respect of any hay,
straw," &c., «( which should be grown or produced upon the said fiurD

17 ADOLPHUS & ELLIS. N. S. 811

and sold by the defendant without the written license of the plaintiff:"
Averment : that defendant continued tenant to plaintiff upon the said
fltipolations and conditions until the said tenancy determined; and that
defendant did, to wit, on, ftc, without the written license of plaintiff,
sell to a certain person, to wit, &c., ten loads of straw grown on the
said farm during the said tenancy: whereby defendant according to his
promise is liable to pay plaintiff 51, for each of the said loads of straw
80 sold by defendant as aforesaid, amounting in the whole to 502.
Breach, non-payment.

Plea. That the said straw so in the declaration alleged to have been
sold was sold by defendant after the determination of the said tenancy
in the declaration mentioned, to wit, on, &o. ; and not otherwise. Veri-
fication.

Demurrer, assigning as causes : That the plea raises an immaterial
issue, and neither traverses nor confesses and avoids the breach of con-
tract alleged : that it is immaterial whether the straw alleged to have
been sold by defendant was sold by him before or after the determina-
tion of the tenancy, provided that it was straw grown on the said farm
daring the tenancy, &c.
The Court called upon

Cowling^ in support of the plea. — The stipulation is in effect, that
the tenant shall not sell the straw, &c., during the tenancy ; that is
shown by the agreement '''that the penalties shall be recoverable y^^^ ^
as rent; which could not be if they were incurred after the '-
tenancy expired. And this is a reasonable construction ; for there is
nothing in the agreement rendering it imperative on the tenant to con-
sume the farm produce on the farm. He may carry it away and con-
sume it on his new farm if he has one ; but, if he has no farm, he must,
according to the construction put on the agreement by the plaintiff,
suffer it to rot, or make a^ present of it to the landlord; for he has no
power to consume it on the farm which is no longer his, and there is
nothing to enable him to compel the landlord to pay for any farm pro-
duce left on the farm. [Lord Gahpbbll, G. J. — How do we know
that ? The declaration professes to set out some only of the stipula-
tions. There may be a stipulation that the landlord shall buy at a
valuation what fara^ produce is left.] If there were such a stipulation,
it would afford an argument in favour of the plaintiff's construction ; •
and, as he has not set it out in the declaration, it must be taken, as
against him, that there is no such stipulation. Further : the considera-
tion is a bygone one, and can support only the promise implied by law.
The law will not imply from a tenancy a promiae as to the conduct of
the tenant after the tenancy is determined.

C. J. Bojflejf^ for the plaintiff^ was then called on. — The parties have
agreed on the terms on which the defendant was to be tenant. They
might if they pleased have restricted the stipulation, as to not aelling

812 M ASSET v. GOODALL. T. T. 1851.

straw, &o., to the time of the tenancy ; bat they have not thought fit
to do so. The Court will not put a sense on the words different from
^Q^o-i that which they naturally ""bear, without some strong reason.
^ Here the reasonable construction is the natural one.

Lord Gahpbbll, C. J. — I am of opinion that the plaintiff is entitled
to judgment. The declaration alleges that the defendant became
tenant to the plaintiff t<on the following (among other) stipulations
and conditions." So it does not profess to set out all the stipulations
and conditions, but only such as are broken, and in respect of which
the action is brought. It then proceeds to state a condition «< that the
defendant shall not sell any hay, straw," &c., «< grown or produced upon
the said farm, without the written license of the landlord." Here is
an allegation of a positive and unqualified stipulation, that the defend-
ant should not sell straw grown on the farm ; and it is assigned, as
a breach of it, that he did sell straw grown on the farm during the
tenancy: but it appears that the sale was not during the tenancy.
The question then is, Whether that breach be well assigned ? I think
it is ; it comes within the express words, and I think within the inten-
tion, of the agreement. If the stipulation were confined to sales during
the continuance of the tenancy, there would be nothing to prevent the
tenant, during the last year, from hoarding up all the produce of the
farm, spending no part of the manure on the farm, and, the day after
the tenancy determined, selling it at all, leaving the farm ruined and
exhausted. I do not think that such a construction would make the
agreement reasonable as between landlord and tenant. It is said that
on the other construction there is a hardship on the tenant, who may
not be able to use all the farm produce while he is tenant, and is pro-
^Q-fl^-i hibited from selling it afterwards: *but we have not all the
-* stipulations set out ; and, for aught I know, among those not
set out may be a stipulation that the landlord or the incoming tenant
shall pay for all that the outgoing tenant leaves behind. Such a pro-
vision would obviate this supposed hardship. But, at all events, this
breach comes within the express words of the agceement, and, as I think,
within its spirit also.

Patteson, J. — I am entirely of the same opinion. The declaration
alleges that the defendant had become and was tenant from year to
year to the plaintiff on the following (among other) stipulations ; and
the promise is laid in consideration of that. It is not alleged that he
became and was tenant at his request ; but I take it that it is only
necessary to lay a request where the consideration was wholly bygone
and executed at the time of the promise, and that it is not necessary
when it is a continuing consideration, as this is, where the terms would
oontmue after the promise throughout the whole tenancy. King v.
Sears, 2 G. M. & R. 48 ;t S. G. 5 Tyr. 587, and other cases, I thiuk,
establish that distinction. Then the declaration sets out some of the

17 ADOLPHDS & ELLIS. N. S. 314

terms, and, among them, that the defendant shall not sell straw grown
upon the farm without a written license; nothing is said to limit the
restriction to a sale during the tenancy. The stipulation is expressed
▼ithout restriction, that he shall not sell straw under a penalty ; and
in consideration of the premises the promise is laid to pay all penalties
incurred according to the stipulations. Mr. Qowling says that the con-
sideration will not support the promise. *Now I agree that « p^„
past consideration will support the promise implied by law, and, ^
as a general rule, will support no other promise. But here the defend-
ant become tenant to the plaintiff on certain terms : whatever those
terms were, the law wi>uld imply a promise to observe them ; and the
promise laid here is no more than a promise to observe one of those
terms ; that is, to pay penalties according to those stipulations. The
question therefore comes to be whether it is a breach of those stipula-
tions, to sell, after the determination of the tenancy, produce raised on
the farm during the tenancy. If he had sold it during the tenancy, it
would have been a clear breach. That the defendant waited till the
term had expired before he sold, I think, makes no difference. Thf
penalties are to ««be considered as additional rent*' and to be «< recover-
able by distress or otherwise as rent." That I think only means that
the parties agreed that the plaintiff was to have the same remedies for
recovering the penalty that he would have for his rent : and, though
one remedy to recover rent, namely, distress, does not apply after the
determination of the tenancy, others, such as this very action of as-
sumpsit, remain. I therefore see nothing in this stipulation to show
that the time of sale was material ; and it seems to me that it was not.
Erle, J. — I pat A different construction on the terms set out in this
declaration. The defendant became tenant on stipulations, amongst
others, that the rent should be payable half-yearly, and that the de-
fendant should not sell any straw, &o., produced on the farm without
license, under a penalty. Some of these stipulations must be confined
to the time of the tenancy. They are entered *into in consi- r^ito-ta
deration that the relation of landlord and tenant is created : ^
and I think that the implied qualification «« whilst the relation of land-
lord and tenant continues*' pervades them all. 9he whole of the stipu-
lations are not set out^ but, if there are any affecting the construction
of those set out, it is the plaintiff's fault that they are not before us.
Taking it that we have all that is provided for on this point, and that
the agreement is imperfect, which is what I infer from the declaration,
there is nothing provided as to the landlord taking the produce at the
end of the term. The question therefore arises, whether on these
stipulations the tenant is, at the end of the term, bound to leave the
produce as manure for the landlord without any remuneration, or is
entitled, after the expiration of the term, to use it as his own. It
seems to me that, on the construction of these terms, he is entitled to
VOL. XVII. — 27 b2

816 MASSEY v. GOODALL. T. T. 1851.

tise it as his own. He has done so ; and I think the defendant entitled
to judgment. Judgment for plaintiff.(a)

(a) Reported by C. Blackbnrn, Esq.

♦817] *HOLLOWAY v. THE QUEEN. , June 11.

(Error from the Quarter Sessions for the COVENTRY division of
WARWICKSHIRE.)

Indictment under stat 4 G. 4, c. 64 (for eontolidating the laws na to gaols), ■. 43, which enacts tbtt,
if any person ihall, ** by any means whatever/' aid any prisoner to escape, or in attempttog tA
escape, from any prison, he shall be guilty of felony, and, on conviction, be transported fcr
any term not exceeding fourteen yean. The first count alleged that the gaol aAer-mentioned,
situate at, Ac, in the city of Coventry, was a gaol to which, at the time of the committiD; of
the after. mentioned offence, stat 4 G. 4, o. 64, extended. -That T. was a prisoner in the laid
gaol ; and that defendant feloniously did aid and assist T., then and there being such prieoBer,
in attempting to escape from the said gaol, against the form of the statutes.

Held by Lord Campbell, C. J., and Patteson, J. (on writ of error, after conviction and jadgmest
of fourteen years' transportation), a good count, under this statute, though it did not ipccify
any means by which defendant aided T. in attempting to escape. And though it did not
allege in direct terms that T. attempted to escape.

The second count stated that, at the time of the committing of the offence, T., being a prisoacr
in the said gaol, was meditating and endeavouring to escape therefrom, and, in order thento.
had procured a key with intent to effect his escape by means thereof, and had made to defead-
ant, then and there being a turnkey of the said gaol, certain overtures and promises to indaee
him to aid T. in escaping therefrom, and so and in manner aforesaid, was attempting to
escape from the said gaol: And that defendant then and there, on, Ac, and while T. wai Boeb
prisoner in the said gaol, with force and arms, at the parish, Ac, feloniously did recetre the
said key, then and there being fitted to and capable of opening divers locks in the said gaol
whereby T. was then and there secured therein, with intent thereby to enable T. to eMspi
from the said gaol : And so the jurors, Ac, say that defendant then and there, on, Ic^ u
manner and form in this count mentioned, feloniously did aid and assist T., then and tbere
being such prisoner, in so attempting to escape from the said gaol in thia count meotioBcd.
against the form of the statute, Ac

There were several other counts, not materially differing from these respectiTely.

Held, on error brought as above :

That an attempt to escape, and the means, appeared (if it were necessary to show them) witk
suflBcient particularity by the introductory part of the count

That an offence of aiding, within stat 4 G. 4, c 64, sufficiently appeared.

That the count was not double.

That the count was not bad for want of a more particular venue to the acts charged in the iotro-
dttctory part as an attempt by T. to escape.

That the general averment of the gaol being a gaol to which the piovifions of stat 4 0. 4, e. M.
applied, was sufficient, without showing how it came within them.

And that it was not necessary to show more particularly that C^entry gaol was a gaol for the
county, within stat 6 A 6 Vict c 110, s. 3.

That the count was not bad as charging an accessory without including the principal, or aveiria^
that he bad been convicted ; the aiding, under stat 4 G. 4, c 64, s. 43, being a snbBtantiv*
offence. And that, at all events, the objection would have been too late, after defendant hid
taken his triat

That it was not necessary to show that the prosecution was commenced within a year after th«
offence, as was required by stat 16 G. 2, c. 81, s. 4.

TiMt, supposing several counts of the indiotment to aver substantially the same fiMts, witheot
distinguishing one narrative from another by the term "afterwards," or any similar expresneai
the indictment was not bad for duplicity, as the Court would not assume thai the same offeace
was repeatedly charged.

The caption stated that the indictment was found at the Sessions holden at Warwick* ia •■'
for the county of Warwick, and, by adjournment thence, at Coventry, in and for the »■•

17 ADOLPHUS & ELLIS. N. S. 317

00DDt7, flpoB the oath of A., B^ ke., good mad lawful men of the ooonty, then and there ewon*
to inquire for the body of the coanty. Held a suiBcient caption under the Aot 6 A- 6 Vict
e. 110, annexing the county of the city of Coventry to Warwickshire.
H«Id ftlM that, if any one eount of the indietment waa good, the Court might, under ttal 11 A
12 Viek ^ 78, §. 6, pronounoe Judgment^ or direet the Seeiiont to proaounoe it» on the good
eount.

Thb plaintiff in error in this case was convicted at the above-men-
tioned Quarter Sessions, under stat. 4 G. 4, c. 64, s. 43.(a) The caption
of the indictment was as follows :

♦"Warwickshire, to wit. Be it remembered that, at the Ge- |-,oio
neral Quarter Sessions of the peace of oar Lady the Queen, ^
bolden at Warwick inland for the said county, on," &c. (30th December,
1850), « and from thence continued by adjournment and holden at the
City of Coventry in and for the said county of Warwick, on," &c.
(January Ist, 1851), « before William Dickins, Esquire," «< and others,"
tc.y << keepers of the peace," &c., (<and also justices of the said Queen
appointed to hear and determine divers felonies, trespasses," &c., («done
and committed in the said coanty, and of the quorum *and so r^toiq
forth, upon the oath of Samuel Gibbon," &c., «« good and law- '-
fa] men of the county aforesaid, then and there sworn and charged to
inquire for our said Lady the Queen and the body of the said county,
it 18 presented in manner," &c.
. The first count was as follows.

Warwickshire, ^ The jurors for our Lady the Queen upon their
Coventry division, V oath present : That the gaol hereinafter in the first
to wit. J three counts of this indictment mentioned, to wit,

the gaol of our Lady the Queen at Coventry, in and for the Coventry
division of the county of Warwick, being situate at the parish of the
Holy Trinity in the City of Coventry, in the said Coventry division of
the county of Warwick, is a gaol to which the provisions of a certain
Act of Parliament made and passed, ke. (4 G. 4, c. 64), « for consoli-
dating and amending the laws relating to the building, repairing, and
regulating of certain gaols," did at. the time of the commission of the
offence hereinafter in the first three counts of this indictment mention-
ed, and still do, extend. And the jurors, &c., further present that here-
tofore, viz., OB the 18th day of December, a. d. 1850, Robin Thomp-
son was a prisoner in the said gaol, and that one Henry Holloway, late
of the parish of the Holy Trinity, in the City of Coventry, in the said

(<r) Stet 4 G. 4, e. 64, ■. 48, euMti : "That if may penon shall eonrey or eanie to he oonveyed
iato uj prison to whieh this Aot shall extend, any mask, viior, or other disguise, or any instm-
nent or anns proper to fiioiUtate the escape of «ny prisoners, and the same shall deliver or oanse
to be delirered to any prisoner in such prison, or to any other person there, for the use of any
saeh prisoner, withoat the oonsent or privity of the keeper of sneh prison, every saoh person
ihall be deemed to have delivered such viior or disguise, instniment or arms, with intent to aid and
Msist each prisoner to esoape or attempt to eseape ; and if any person shall, by any means whaU
ev«r, ud and assist any prisoner to eseape or in attempting to eseape from any prison, every
perMD §0 offending, whether an eseape be aetually made or not, shall be goilty of felony, and
beiog eoaviotsd thereof, shaU be transported beyond the seas for any term not ezoeeding foafw
teen years."

819 , HOLLOWAY v. THE QUEEN. T. T. 1851.

division of the county of Warwick, labourer, on the day and year last
aforesaid, with force and arms, at the parish aforesaid, in the said Co-
ventry division of the said county of Warwick, feloniously did aid and
assist the said R. T., then and there being such prisoner as aforesaid,
in attempting to escape from the said gaol, against the form of the
statutes in such case, &c., and agains.t the peace, &c.
*^off\ *Second count. And the jurors, 4c., do further present : Tbat
-* heretofore, and before and at the time of the committing of the
oiTence hereinafter in this count mentioned, the said Robin Thompaon,
being a prisoner in the said gaol, viz., the snid gaol of our Lady the Queen,
at Coventry, in and for the said Coventry division of the county of War-
wick, so situate as aforesaid, was meditating, projecting, and endea-
vouring to procure and effect his escape from the said gaol other^rise
than by due course of law, and in order thereto had procured a certain
key, being the key hereinafter mentioned, to be made and constructed
for the use of him the said R. T., with intent to effect the said escape
of the said R. T. by means of the said key, and also had made and
caused to be made to the said Henry Holloway, then and there being a
turnkey and having authority in the said gaol, certain overtures and
promises whereby to' induce and persuade the said H. Holloway to aid
and assist the said R. T. to escape from the said gaol, and so in man-
ner aforesaid was endeavouring and attempting to procure his escape,
and to escape, from the said gaol: And the jurors, &c., further present
that the said H. Holloway, not regarding his duty in that behalf, then
and there, viz., on the day and year aforesaid, and whilst the said R. T.
was such prisoner in the said gaol as aforesaid, with force and arms, at
the parish aforesaid, in the said Coventry division of the said county
of Warwick, feloniously and designedly did procure, and receive, and
take into the custudy and possession of the said H. Holloway the said
key, then and there being adapted, and fitted to, and capable of open-
ing and unfastening divers locks in the said gaol, whereby the said B.
^oQi-i T. was then and there secured in the said gaol, with intent
■* *thereby and by means thereof to enable the said R. T. to
escape from the said gaol and go at large whithersoever he would : And
so the jurors aforesaid upon their oath aforesaid, say^hat the said H.
Holloway then and there, viz., on the day and year aforesaid, with force
and arms, at the parish aforesaid, in the said division of the said county
of Warwick, in manner and form in this count mentioned, feloniously
did aid and assist the said R. T., then and there being such prisoner as
aforesaid, in so attempting to escape from the said gaol as in this count
mentioned, against the form of the statutes, &c., and .against the
peace, &c.

The third count, after an inducement in nearly the same words afl
that in the second, charged that defendant, not regarding his duty in
that behalf, then and there, to wit on the day and year aforesaid, with

17 ADOLPHUS & ELLIS. N. S. 321

force and arms, at the parish, &c., feloniously did aid and assist the
said R. T., then and there being sach prisoner as aforesaid, in so at-
tempting to escape from the said gaol as in this coant mentioned, against
the form of the statutes, &c., and against the peace, &c.

The fourth count recited a committal of Thompson by a justice for
trial on a charge of forgery, by warrant directed to the keeper of the
common gaol at Coventry ; and that Thompson was in custody in a
certain gaol, to wit, the said gaol in and for, &c., situate, &c. (as in the
second count), on the justice's warrant. It then alleged that, after-
wards and within one year heretofore, to wit, on 18th December, 1850,
and while R. T. was a prisoner lawfully committed to and detained in
the said gaol by virtue of the said warrant for the felony therein speci-
fied, &c., defendant, with force and arms, &c., at, &c., feloniously was
aiding and assisting the said B. T., then *and there being such p^cOQn
prisoner, &c., and lawfully committed, &c., for the felony and ^
caase aforesaid, to attempt to make his escape from and out of the aaid
gaol, against the form of the statute, &c.

There were five other counts, which it is not considered necessary
to state more particularly. .

Plea, Not Guilty.

The record then set forth the venire, directing that a "jury should
immediately come before the said justices, &c., of good and lawful men
of the county aforesaid, by whom, &c.: impannelling and coming of such
jury; verdict that defendant is Guilty; and judgment by the Court
<^That the said Henry Holloway be transported beyond the seas for the
term of fourteen years.'

Error was assigned on numerous grounds. Those mainly relied upon
fill appear sufficiently by the argument. Joinder in error.

Floods for the plaintiff in error. — The indictment is bad. [Lord
Campbell, C. J. — If there is one good count, it is sufficient, in my
opinion, to warrant a judgment, under the Btatue(a) passed since the
decision of O'Connell v. The Queen, 11 CI. & Fin. 156.] The plaintiff
in error will argue that point if necessary ; but there is no good count.
The first count does not show the means by which the attempt to es-
cape was aided. Merely to ^follow the words of the statute is r^tono
not enough in an indictment for false pretences : the pretences ^
mast be set forth. The second count professes to state the means, but
is open to objections, some of which apply to the first count also. It
does not show that Thompson did in fact attempt to escape. The mere
procaring a key is not such an attempt : if it were, the first part of
Stat. 4 G. 4, c. 64, s. 43, would be superfluous. Procuring a loaded

{a) Stat. 11 A 12 Vict c 78, 8. 6, enaots : "That wbeneTer anj writ of error iball bo brought
npoD toy judgment on any indictment, information, presentment, or inquisition, in any criminal
case, ftnd the Court of error shall reverse the judgment, it shall be competent for such Court of
nror either to pronounce the proper Judgment or to remit the record to the Court below, in
order that such Cour^ may pronounce the proper judgment upon inch indictment, information,
prc'':atm«ul, or inquisition."

HOLLOWAY V. THE QUEEN. T. T. 1851.

pistol with intent to murder a person is not an attempt to murder
him. Having in possession a picklock key with intent to commit
burglary is not an attempt to commit burglary, but is n)ade a substan-
tive offence by the Vagrant Act, 5 0. 4, c. 83, s. 4.(a) The conclud-
ing words of the count, ^'and so the jurors,*' &c., <^say that the said
H. H." (« feloniously did aid and assist," &c., do not remove the obje^
tion : they merely affirm that, by reason of the facts before stated, it la
charged that Thompson attempted, &o. The narrative of facts is in
itself too vague and uncertain. The defendant's taking the key into
possession with intent to enable Thompson to escape is not an aiding.
If procuring the key was attempting to escape, the defendant was not
aiding the attempt, within the meaning of the statute, but was acces-
sory after the fact to a misdemeanour ; for the act of Thompson was no
more. The << meditating" to escape, and causing the key to be made,
were things done before the defendant interfered. If receiving tke
key from Thompson was in itself an offence by HoUoway against the
statute, the count is double. The aiding ought to have reference to
♦^911 ^^™® ^specific attempt at escape : this count does not show that

^ the defendant even knew of any escape contemplated by Thomp-
son. [Lord Campbell, C. J. — It says that defendant received the key
from him ('with intent thereby and by means thereof to enable the
said R. Thompson to escape."] The whole indictment is bad on the
ground of duplicity ; for several of the counts, upon the face of them,
evidently charge the same offence. [Coleridgb, J. — Supposing that
one were an exact transcript of another, is there sufficient authority for
aaying that the indictment would be bad? Lord Campbell, C. J. — If
the counts were good in themselves.] According to the judgment of
the Court of Queen's Bench in Campbell v. The Queen, 11 Q. B. 799,
811 (E. C. L. R. vol. 68), it is a fatal defect. [Patteson, J.— The Court
of Exchequer Chamber, in the same case, guarded against adopting the
same doctrine.(i) And why must we assume that a man did not assist
another to escape on as many different occasions as there are coants
in the indictment?] The affirmative is not to be presumed. And, if
this were intended, the words << afterwards, to wit," or some equivalent
expression, should be used. [Lord Campbell, C. J. — In Campbell r.
The Queen, it was not necessary to determine this point in the Qaeen's
Bench or in the Exchequer Chamber.] Again, the counta are defec-
tive because no venue is given to the attempts on Thompson's part,
which the defendant is charged with having aided. This was the ob-
jection taken to the fourth count of the indictment in Regina v, F.
O'Conner, 5 Q. B. 16 (E. C. L. R. vol. 48). [Lord Campb.ell, C. J.-^
^„2c-i The local situation of the gaol appears ; how *could Thompson.

■* being there, attempt to escape anywhere else? In Tilley's
Case, 2 Leach, C. C. 662, it was held not necessary to state at all, by

(a) See m to attempts generallji 1 Ru8«. on Cr. 46, et seq. 3d ed.
(6) Campbell v. The Queen, 11 Q. B. 838 (E. C. L. B. ToUtlS).

17 ADOLPHUS ft ELLIS. N. S. 825

direct averment, that the prisoner attempted to escape : the allegation
that the defendants assisted him to do so was deemed sufficient.] At
least, where the indictment professes to show how the party attempted,
a venue should be given. Aiding does not necessarily imply being
present; McDaniel's Case, Fost. G. L. 121. Further, it is not shown
that the gaol in question is a gaol within stat. 4 6. 4, c. 64, except by
averring that it is so, which is a conclusion of law. Nor is it shown to
be the gaol mentioned in stat. 5 ft 6 Vict. c. 110, s. 2, which makes
Co?entry gaol a gaol for the county. Again, the caption is framed as
in the case of an ordinary adjourned session. But the adjournment to
Warwick is under a special statutory power, and under specific direc-
tions :(a) and it ought to appear expressly ♦that these were acted r^oo/j
upon. [Lord Gampbbll, G. J. — That the sessions were holden '-
at Coventry as soon as they conveniently could be after the sessions
at Warwick were concluded?] And that the grand jury were sum-
moned from the Coventry division. [Coleridgb, J. — Is not there a
grand jury for each at the county sessions ? There are always two at
the assizes. Lord Gampbbll, G. J. — We charge two grand juries here
in term.] It should, appear by the caption, according to the fact, that
the grand jury were properly summoned. Here they are stated to
have been sworn, ftc, for *' the body of the said county." [Golbridob,
J.— Both are so.] Again, the defendant here is indicted under a
statute which expressly makes him an accessory; and the indictment
10 charges him. There is no authority, under this statute, to try the
accessory as such, before the principal. [Lord Gampbbll, G. J. — The
statute makes the aiding party a principal felon. Colbripoe, J. — Gan
a defendant take this objection after he has pleaded ? An accessory
might always be tried without the principal, if he consented to it ;
though the jury must be told, in such a case, that they cannot convict

(a) SUt 5 A 6 Viet o. 110, "to annex the ooanty of the City of Coventry to Vfarwicksbire,"
lie, enacts :

Sect 7. That, after 9th Korember, 1842, " the justioei of the county of Warwiek shall hold a
qoarteriy session of the peaoe at Coventry, by adjournment from Warwick, for the city of Coven-
try, and such other part of the county of Warwick as the justices from Warwickshire from time
to time in general or quarter session assembled shall order; and as soon as the said sessions can
be conveniently holden after the business of the sessions at Warwick shall have been concluded,
and after the said ninth day of November, no separate Court of fiessions of the peace shall be
holden for the City of Coventry/'

Sect 9. " That the Judges of assise and nisi prius, and others named in Her Majesty's commis-
sions of oyer and terminer and gaol delivery, shall hold their sittings at nisi prius, oyer and
terminer, and gaol delivery, within the said city of Coventry, for the said city and for such
other parts of the said county of Warwick as Her Majesty, with the advice of her Privy Council,
from time to time shall order, and at Warwick for so much of the rest of the said county as shall
*oot be incladed in any such order: and that the sherifT of the county of Warwick shnll give
bis attendance upon the said Judges and comminsioners, and shall cause tojbe summoned to
Vfarwick and Coventry such grand and petty jurors of the county of Warwick as shall be
needed fi^r the ezecatinn of the said several commissions ; and that all proceedings and orders
cecessary for the execution of the said several comratjmions at Warwick and Coventry respect-
ively shall be of the same force as if the same had been had and taken under the several
like eommiasions heretofore issued for the county of Warwick ;" 4e.

826 HOLLOWAY v, THE QUEEN. T. T. 1851.

unless satisfied that the offence has been committed.] The first three
counts are bad because thej do not show that the prosecution was
commenced within one year after the fact was committed, which is
^007-1 required by stat. 16 G, 2, c. 81, *s. 4.(a) That Act is not
^ affected by the repealing clause, sect. 1, of stat. 4 G. 4, c. 64,
except as to «« any gaol or prison to which this Act shall extend ;" and
the record does not properly show that the gaol in question is one of
those. [Lord Campbell, C. J. — We all think the second count good,
but will hear you if you have any further objection to that. Tou will con-
sider whether it is of any service to you to question the others.]
Lastly, stat. 11 & 12 Vict. c. 78, s. 5, does not help the prosecutors in
this case. If the Court reverse the judgment, the only judgment thej
can pronounce, or direct, is that the plaintiff in error go without day,
there being one bad count in the indictment. The provision of the
statute applies only where, upon the record, a judgment against the
defendant is warranted, but a wrong sentence has been passed ; as of
fourteen years' transportation instead of seven. [Colbridge, J. — May
not this Court pronounce that the Court below ought to have passed
sentence under the good count, and arrested judgment on the others?]

Mellor^ contrel^ was stopped by the Court.

Lord Campbell, C. J. — On the construction of stat. 11 k 12 Vict.
c. 78, s. 5, 1 have no doubt that, if there should be one good count, and
the rest bad, we should be bound either to give judgment on the good
count, or remit the case to the Court below, for them to pass such
judgment. It was indeed held in Rex v. Bourne, 7 A. & E. 58 (£. C.
L. R. vol. 84), that the Court of error could not give judgment on a
^Qrto-i y^^^i count, even where there was but one sentence *which could
^ be passed. I, as Attorney General, conducted that case on the
part of the Crown, and bowed to the decision of the Court, though I
doubted its correctness, and my opinion was strengthened by the doubt
of my brother Patteson, who will always be to me an oracle of the law.
In that case, I should have directed further proceedings in error, but
the prisoners had been discharged. It was always my opinion that,
where the sentence was discretionary, the Court of error could not well
pronounce the judgment, and the Court below should ; but that, if only
one judgment could be given, the Court aboye might safely pass the
sentence which ought to have been passed by the Court below. Now,
however, it is expressly provided by the late Act, that, if judgment is
reversed, the Court of error may either pronounce the proper judgm^^nt,
or remit the record to the Court below, in order that they may do so.
And, where the indictment has good and bad counts, so that the Court
below oughf to have arrested judgment on some and sentenced on others,
but they have sentenced on all, the Court of error is no longer under

(a) ** For the farther punishment of penons who shall aid or assist prisoners to attempt
io escape out of lawful custody."

17 ADOLPHUS & ELLIS. N. 8. 828

difficulty, but may itself arrest judgment on the bad counts, and sen-
tence on the good. It is suggested that this takes place only where a
sentence which has been pronounced is the wrong one ; but I think the
rale applies where the judgment has been improper ; as where it pro-
ceeds upon several counts and one is defective : and, if we find a good
count in the present instance, I do not see any difficulty in our either
sentencing upon it or remitting the record for that purpose to the Ses-
sions. But I think Mr. Flood has not shown that any of the counts is
bad. So far as I have gone through the indictment, every one seems
*to be sufficient. The first count, it is said, does not show the r^noq
means by which the escape was aided; but this was not neces- ^
sary. An indictment for obtaining by false pretences must set out the
pretences, that the Court may see whether or not the ofience charged is
brought within the statute. But, by stat. 4 6. 4, c. 64, s. 48, an offence
is committed if the escape be aided « by any means whatever." Then,
in the second count, the means are set forth, and I think with sufficient
particularity and a sufficient venue. * It states that, before the commit-
ting of the offence (that means, as I think, the offence by the now de-
fendant), Thompson, being a prisoner in the said gaol, was meditating,
&c., to effect his escape from the said goal, and, in order thereto, had
procured a key to be made for his use, with intent to effect his escape
by means of the said key, and had made overtures to the defendant,
then and there being a turnkey in the said gaol, to induce him to aid
the escape, and so, in manner aforesaid, was endeavouring to escape.
Thus it appears that, when the offence was committed, Thompson was,
then and there, within the prison, endeavouring to escape. Then it is
stated that the defendant, then and there, and while Thompson was
such prisoner, feloniously did procure and receive the said key, then
and there being capable of opening divers locks in the said gaol, not
innocently, but ««with intent thereby and by means thereof to enable
the said Robin Thompson to escape from the said gaol." That shows
distinctly what it is that the defendant has to answer, and that it is the
aiding in an escape. It is true that the subsequent words, «< and so
the jurors," &c., state only an inference of law; but it is an inference
fairly and necessarily to be drawn from the premises stated. It r^ton/v
*seems to me, therefore, .that this count is good. As to the want ^
of venue to the acts of Thompson, it must be remembered that this is
not an indictment against an accessory at common law, but is under an
enactment which makes the assisting a substantive felony. And this
answers the objection of the principal not being tried with or before the
party aiding ; besides which, the objection comes too lace, as my brother
Coleridge has pointed out. As to the caption : the case is merely that
the sessions for the county are held in different parts of it, and a grand
and petty jury come from each, to try for the body of the county. The
judgment must be affirmed.
VOL. XVII.— 28 T

830 HOLLOWAY v. THE QUEEN. T. T. 1851.

Patteson, J. — As to the caption, the effect of stat. 5 &; 6 Vict. o.
110, sects. 7 and 9, is, snbstantially, that the assizes are held at Co-
yentrj for a portion of the county : bat they are not the less sessions
and assizes for the whole county, holden by adjonrnnient from War-
wick. I cannot see any possible objection to the first count. As to
the case put, of an indictment for obtaining by false pretences : where
the offence consists in doing an act by means which are of a particular
character, the Court ought to see by the indictment that they are of
that character ; but, if it be made penal to do the act by any means,
what is the use of setting them out ? I think the other counts are good
also, for the reasons which have been already given. The averment
that Thompson, at the time of the committing, &c., being a prisoner in
the said gaol, did certain acts, is, I think, quite sufficient in this case.
But the main question was, whether any one of the counts was good

♦8811 "^^®^ ^^^ ^^^ * ^' *' ^' ^^' Whether stat. 16 G. 2, c. 31, be
^ ♦repealed or not is, for the purpose of the present charge, im-
material. Stat. 4 0. 4, c. 64, s. 43, is a substantive enactment ; and
this case is within it. And, supposing nine different offences to be
charged in this indictment, the punishment for every such offence is
fourteen years* transportation, and that would be the judgment on
every count.

C0.LERIDGB, J. — I think the second count is good. The procuring a
key, the overtures to the turnkey, and the other acts there alleged as
inducement, were all conducive to the end of making an escape, dand
attempts towards that end : there nas a design to escape, evidenced by
overt acts. And then it is averred that th^ defendant received the key
from Thompson, with intent, by means thereof, to enable him to escape.
That, after the overtures recited, is a clear act of assisting the prisoner
in an attempt to escape.
Eblb, J., concurred.

Judgment as follows : « That the judgment given against the
said Henry Holloway is good and sufficient in law. It is there-
upon ordered that the said judgment be affirmed."

17 ADOLPHUS t ELLIS. N. 8. 882

♦The QUEEN v. BASSET and HOLLAND. June 11. [*382

Tb$ ADcieDt parish of SL OUei in the Field* was divided (under Acts of Anne and Q. 1 and G.
2 for the bailding, Ac, of new oburches) into two parishes, 8t Oilea in the Field and St
Qeorge Bloomsbary, which were made separate and dintinct for all purposes except as to
church, highway, and poor rates, and separate Testrymen were appointed for the new parish.
By itoU II O. 4 A 1 W. 4, e. x., For regulating the affairs of the joint parishes of SL Giles
and St Ooorge, and of the sepsrate psrishes of St Giles and St George, the vestry of eaeh
parish was to be eomposed of forty-two persons (besides the rector and churchwardens),
elet'ted by the restrymen duly qualified; each restry was to* appoint its own church wardeoa
and auditors and make its own church rates, and to manage some other aifairs of the separate
parish ; and the vestrymen of the two parishes were to be tbe joint vestry of the parishes, and
to appoint overseers and directors and other officers to manage the relief of the poor of the
ioinc pariah, to make its poor rates, and to ezereise other powers relative to tbe poor and con-
cerning tbe parishes jointly. Questions before the joint vestry were to be decided by %
majority of the vestrymen present
Held that the parishioners of one of the parishes could not separately adopt the provisions of
Sir J. Hobbouse's Act, 1 A 2 W. 3, o. 60, for tbe election of their own vestry. ^

Indictment, found at the Central Criminal Court, and removed into
this Court by certiorari.

The first count stated : That, after the passing and coming into ope-
ration of a certain Act of parliament made, &c. (1 & 2 W. 4, c. 60,(a)
(«For the better regulation of vestries, and for the appointment of
auditors of accounts, in certain parishes of England and Wales'"), cer-
tain of the rate-payers of a certain parish in Engltfnd, that is to say of
the parish of St. Giles in the Fields in the county of Middlesex, and
within the jurisdiction of the Central Criminal Court,(i) desired that
the^aid parish should come *under the operation of the said Act : r^tnoo
And that a certain number of the ftte-payers of the said parish, *-
amounting at least to fifty parishioners of the said parish, that is to
say, to 146 parishioners of the said parish, whose names are to the said
requisition hereinafter in this count set forth affixed, did, on a certain
day between the 1st day of December, a. d. 1849, and 1st March, a. d.
1850, viz. on the 28th day of February, A. D. 1850, iti pursuance and
in conformity with the provisions of the said Act, deliver a requisition,
by them signed and describing their places of residence, to two of the
churchwardens of the said parish then serving for the said parish, to
wit, to James Basset, late of the parish aforesaid in the county afore»
said, labourer, and Henry Charles Holland, late of the parish aforesaid
in the county aforesaid, labourer, then being, and as, the churchwardens
serving for the said parish, requiring of them as such churchwardens
to ascertain, according to the manner in the said statute, mentioned,
whether or not a majority of the rate-payers of the said parish did wish
and require that the said Act and the provisions thereof should be
adopted therein ; which said requisition was and is in the words and
figures following, viz. «(To the churchwardens of the parish of St.

(a) Sir Jf Hobbon^p's Aet

(6> Thia averment was made where neoessary in subieqaent parti of the record, but will not
be repeated in this abstraot

833 REGINA v. BASSET. T. T. 1851.

Giles in the Fields in the county of Middlesex :. We whose names are
hereunto subscribed, being rate-payers resident in the said parish and
respectively rated or assessed to the relief of the poor thereof, do
hereby require you the said churchwardens to ascertain and determine
the adoption or non-adoption of an Act of the second year," &c.,
"intituled <An Act'" A;o. (1 A; 2 W. 4, c. 60). "Dated this 28th
day of February, 1850/' (Then followed the names and addresses
*^U1 *^^^^^^'^^^^ ^0 ^b® requisition.) Nevertheless the said J. Basset

-' and H. G. Holland, so being such churchwardens as aforesaid,
not regarding their duty in that behalf, but contriving and intending to
tender the said requisition of no effect, although they received the said
requisition on the day on which it was so delivered as aforesaid, at the
parish, &c., unlawfully did refuse and neglect to affix or cause to be
Viffixed, on the first Sunday in the month of March next after the receipt
of the said requisition, viz. on the 8d day of March last past, a notice
to the principal doors of every church or chapel within the said parish,
specifying some day not earlier than 10 days and not later than 21 days
after such Sunday, and at what place or places within the said parish
the rate-payers should be required to signify their votes for or against
the adoption of the said Act, or any notice whatsoever pursuant to the
said Act ; in contempt, &;c., to the evil example, &c., against the form
of the statute, &c., and against the peace, &;c.

2d 'count. And the jurors, &c. : That, after the passing, &c. (of stat.
1 & 2 W. 4, c. 60), certain of the rate-payers of a certain parish.in
England, viz., the parish of St. Oilps, &c. (as before), that is to say,
certain persons who had respectively been rated to the relief of the
poor for the whole year immediately preceding their acting as sueh rate-
payers as hereinafter mentioned, and who had respectively paid all the
parochial rates, taxes, and assessments due from them at the time of so
acting, except as in the said statute is excepted, desired, &;c. (as before).
And that a certain number, &c. (as before), whose names and residences
are set forth in the requisition hereinafter in this count mentioned,
^„„ -, did, on a certain day, &c. ; as in the first count to the end, *only

■* adding, after the words " every church and chapel within the
s'aid parish," the words " that is to say, to the principal doors of all
places of religious worship within the said parish according to the forms
of the established church."

8d count That the said J. Basset and the said H. 0. Holland here-
tofore, to wit, on, &c. (28th February, 1850), and for a long time there-
tofore, were churchwardens of the parish of St. Giles, &;c., and were
on the day and year last aforesaid respectively serving the office of
churchwardens of and for the parish aforesaid; and that certain,
to wit, 500, of the rate-payers of the parish aforesaid, on, &c., at,
&c., did desire that the said parish should come under the operation
of a certain Act, &c. (1 & 2 W. 4. c. 60) : And that afterwards, to

[♦336

17 ADOLPHUS & ELLIS. N. S. 335

wit, on, &c., at, &c., « certain number, &c., viz., 146 parishioners
of the parish aforesaid, did, on a certain day between, &c., to wit, on,
ic, deliver a requisition, by them signed and describing their places
of residence, to each of them the said J. B. and H. G. H. as such
charchwardens then serving for the said parish as aforesaid, and requiring
of them the said J. B. and H. G. H., such churchwardens as aforesaid,
to ascertain, &c. (as in the first count): which said requisition was then
and there duly received by the said J. B. and H. C. H. and ei^ch of
them as such churchwardens as aforesaid : That the first Sunday in the
month of March next after the receipt of such requisition was the 3d
day of March, A. D., 1850; and that it became and was the duty of
them the said J. B. and H. G. H. and each of them, as such church-
wardens as aforesaid, on the said 8d day of March, A. D.^ 1850, at the
parish aforesaid, &c., to affix or cause to be affixed a notice to the prin-
cipal doors of every *church and chapel within the said parish,
specifying some day not earlier than ten days and not later than
twenty-one days after such 8d day of March, and at what place or places
within the said parish the rate-payers were required to signify their
votes for or against the adoption of the said Act : Nevertheless the said
J. B. and H. G. H. and each of them, so being such churchwardens as
aforesaid, not regarding, &c., but contriving, &o. (^s before, to «of no
effect"), unlawfully, wilfully, and contemptuously did refuse and neglect
on the said 8d day, &c., at the parish, &c., to affix or cause to be affixed
a natice to the principal doors, &c., specifying, &c. (as above), or any
notice whatsoever directed to be given by the said Act in such behalf;
contrary to the duty of thetjn the said J. B. and H. G. H. in that
behalf, to the great damage of the said parish and the parishioners
thereof, in contempt, &c. (as before).

The defendants pleaded Not Guilty. On the trial, before Lord
Campbell, C. J., at the sittings in Middlesex after Trinity Term, 1850,
a special verdidt was found, as follows.

The jurors, &c., say : That the parish of St. Giles in the Fields in
the county of Middlesex was an ancient parish : That the Gommissioners
acting under the authority of letters patent granted by King George 1,
and by King George 2, and issued under the powers of the several Acts
of Parliament passed for the building of new churches in and about the
cities of London and Westminster and the suburbs thereof,(a) did,
according to the directions of the said Acts, set out, appoint, and
^declare a certain portion of the said ancient parish of St. Giles r^inni^
in the Fields to be a new, separate, and distinct parish to all ^
intents and parposes whatsoever except as teaching church rates,, the
relief of the poor, and rates for the highways, by the name of the parish
of St. G^rge Bloomsbury ; and did also appoint the rector, church-
wardens, and thirty-six of the inhabitants of the said new parish to be

(a) 8Matata.9ABB.o.S2. 10 Ann. o. II. 4 G. 1 e. 14. Sa.2.e.l9.

837 REGINA v. BASSET. T. T. 1851.

the first vestrymen of such parish ; since which period the said portion
of the said ancient parish of St. Giles in the Fields, so set out, appointed,
and declared to be a new and separate and distinct parish as aforesaid,
has been known and distinguished by the name of the paris'h of St.
George Bloomsbury, and the residae of the said ancient parish has been
known and distinguished by the name of the parish of St. Giles in the
Fields, and the affairs relating to the churches of the said separate
parisf^es were managed by separate vestries of such parishes, the
separate vestry of the said parish of St. George Bloomsbury being con-
stituted according to the directions of the said Acts, until the passing
of the Act, &c. (11 G. 4 & 1 W. 4, c. x., local and personal, public,
after mentioned). And the jurors, &c., say that, up to and at the time
of the passing of the said last-mentioned Act, no division had ever been
made of the said ancient parish of St. Giles in the Fields as to the
maintenance and relief of the poor, according to the powers of the sud
church-building Acts or otherwise ; and the district of the same parish,
so far as relates to the maintenance and relief of the poor, was com-
monly known and distinguished by the name of the joint parishes of St.
Giles in the Fields and St. George Bloomsbury in the county of Mid-
dlesex, the same being coextensive with the said ancient parish of St.
j^Qoo-i Giles in *the Fields in the county of Middlesex, and comprehend-
^ ing the whole of the said separate parishes of St. Giles in the
Fields and St. George Bloomsbury. And the jurors, &c., further say
that the residue of the said ancient parish of St. Giles in the Fields,
from which the said parish of St. George Bloomsbury was so separated
as aforesaid, was and is the same parish of St. Giles in the Fields in
the within indictment mentioned. And the jurors, &c., say that, before
and at the time of the making and passing of the Act, &;c. (1 & 2 W. 4,
c. 60), a certain local Act of Parliament made, A;c. (11 G. 4 ft 1 W. 4, •
c. X.), intituled («An Act for the better regulation of the affairs of the
joint parishes of St. Giles in the Fields and St. Georgft Bloomsbury in
the county of Middlesex, and of the el^parate parishes of St. Giles in
the Field, and St. George Bloomsbury in the same county,'* and which,
from the time of the making and passing thereof, has been in force in
the parishes therein mentioned, continued, and was, and from thenee
hitherto hath been and still is, in force in the said parishes, the said
separated parish of St. Giles in the Fields, therein mentioned, being the
parish of St. Giles in the Fields in the within indictment mentioned :
and the maintenance of the poor, and other affairs of the said parishes,
have been from the time of the making, ftc, of the said last-mentioned
Act hitherto, and now are, regulated and carried on by and in obedienee
to the provisions of the said local Act ; and each of the said separated
parishes has had, during all that time, its own particular churchwardens,
appointed and acting under and in pursuance of the said looal Act.
And the jurors, &c. : That, after the making, &c., of the said Act (1

17 ADOLPHUS & ELLIS. N. S. 888

A 2 W. 4, c. 60), on a certain day between ♦the let day of De- r^iooq
ccmber, A. D. 1849, and Ist March, A. D. 1850, viz. on, kc. (28th I-
February, 1850), the Bai4 local Act being then and there in force in the
said parishes of St. Giles in the Fields and St, George Bloomsbury, and
the maintenance of the poor and other affairs of the said parishes being
then and there regnlated and carried on by and in obedience to the
provisions of the said local Act as aforesaid, a certain number being
more than 50, that is to say, 146 persons, being then and there all
parishioners of the sAid separated parish of St. Giles in the Fields
vithin mentioned, all of whom had been rated to the relief of the poor
according to the provisions of the said local Act for the whole year
then immediately preceding, and then and there paid all the parochial
rates, taxes, and assessments dne from them respectively and which
had 80 become due at any time not within six calendar months next
immediately preceding, being the same persons within in that behalf
mentioned, did deliver a certain reqoisition (being the same requisition
within in that behalf mentioned), then and there signed by them and
describing their respective places of residence as therein mentioned, to
the said James Basset and Henry Charles Holland within mentioned,
then and from thence nntil and at and after the Slst day of March, A.
D. 1850, being and continuing the churchwardens of and serving for
the said separated parish of St, Giles in the Fields within mentioned,
requiring of them the said J. B. and H. G. H., as such churchwardens,
to ascertain, according to the manner in the said within mentioned Act
of King William 4 mentioned, whether or not a majority of the rate-
payers of the said last-mentioned parish did wish and require that the
said last-mentioned Act and the provisions ^thereof should be r^^q^n
adopted in the said last-mentioned parish ;' and which said requi- *-
sition was then and there in the words and figures within in that behalf
set forth : and the said J. B. and H. G, H. then and there received
the said requisition from the said ratepayers. And the jurors, &c., say
that, at the time of the delivery of the said requisition as aforesaid, a
certain number exceeding 50 of the parishioners of the said separated
parish of St. George Bloomsbury, duly qualified in that behalf by
rating and payment of rates, in like manner as aforesaid did deliver a
similar requisition, similarly signed as aforesaid by the said last-men-
tioned parishioners, to^^eparate churchwardens of the said separated
parish of St. George l^Rmsbury, requiring them to ascertain in man-
ner aforeeaid whether the provisions of the said last-mentioned Act
should be adopted in the said last-mentioned parish. And the jurors,
Ac., say that, before and at the times of the delivery of the said requi-
sitions respectively, there was, and from thence hitherto has been, and
still is, in each of the said separated parishes, a greater number than
800 persons rated as householders, and who had paid the rates for the
relief of the poor within the year preceding that in which the provisions

340 REGINA v. BASSET. T. T. 1861.

of the said last-mentioned Act were so desired to be put in execution
within the said parishes respectively as aforesaid. And the jurors, Itc,
say that the said J. B. and H. C. H. and the said churchwardens of
the said separated parish of St. George Bloorosbury, acting under legil
advice, refused to act upon the said requisitions so respectively delivered
to them as aforesaid ; and the said J. B. and H. G. H. did not nor
would, nor did nor would either of them, on the first Sunday in the
*^4n ™^^^^ ®^ March next after the *receipt by them of the sud
^ requisition as aforesaid, and which said €rst Sunday in March
next after such receipt was and fell on the 3d day of March, a. d.
1850, while the said J. B. and H. C. H. were and continued church-
wardens of and serving for the said last-mentioned parish as aforesaid,
or at any other time, affix or cause to be affixed to the principal or any
doors or door of every or any church or chapel within the said last-
mentioned parish, or give or cause to be given, in any manner whatso-
ever, a notice specifying some day not earlier than ten or later than
twenty-one days after the said last-mentioned Sunday, and at what
place or places within the said, last-mentioned parish the ratepayers of
the said last-mentioned parish were required to signify their votes for
or against the adoption of the said within mentioned Act of W. 4, or
any notice whatsoever for or towards the ascertaining in any manner
whatsoever whether or not ar majority of the ratepayers of the said
last-mentioned parish did wish and require that the said last-mentioned
Act and the provisions thereof should be adopted in the said last-men-
tioned parish. But the said J. B. and H. G. H. did, at all times after
the receipt by them of the said requisition, wholly omit to give any
such notice, or in any manner to comply with the said requisition.
But whether or not upon the whole matter, &c. ; referring to the Court
in the usual form to determine whether or not the defendants are
Guilty or Not guilty of the offence charged.

OrowdeVy for the Grown. — The question is, whether St. Giles's be or
be not a parish to which Sir J. Hobhouse's Act is applicable. The
special Act by which that parish is governed is stat. 11 G. 4 & 1 W. 4,
*3421 ^' ^"* *"°^^^ which the parishes of St. Giles and St. George act
-' as joint for the purpose of maintaining their poor, but are in
other respects distinct : and they appoint their own vestries and officers
respectively. The proceedings directed by ifjttk 1 & 2 W. 4, c. 60, sects.
2, 3, 4, 5, are to take place, according to se<^2, (< when in any parish
certain of the rate-payers thereof may desire that the said parish should
come under the operation of this Act ;" and, in case of such desire
being intimated by requisition from one-fifth, or a number not less than
50, of the rate-payers, then, by sect. 3, the churchwardens «< of the said
parish" shall give the rate-payers notice to signify their votes on a
stated day for or against the adoption of the Act. St. Giles's is a
parish within these clauses. [Colbridgb, J. — Do you say that St.

17 ADOLPHUS & ELLIS. N. S. 842

Gi]es*s alone is to come under Hobhouse's Act, and not St. George's ?]
Not St. George's, unless they desire to do so. The proceedings as to
each must* be separate.(a) By the interpretation clause, sect. 41, of
sUt. 1 & 2 W. 4, c. 60, <( parish" is << deemed to include any liberty,
precinct, township, hamlet, tithing, vill, extra-parochial place, or any
place maintaining its own poor." St. Giles's, it is true, does not
entirely maintain its own poor ; but it is a parish for other purposes,
under Hobhouse's Act ; and sects. 2 and 8 include anything which may
be called a *« parish."

The earlier clauses of the local Act provide for the separate action
of the two parishes ; sect. 9 forbids *the exercising any functions r^oMQ
of a vestry for either parish, except as they are in this Act ^
authorized to exercise them separately or jointly.(6) The vestry of
each parish consists, by this Act,(c) of forty-two persons, not including
the rector and two churchwardens: sect. 12 provides that fourteen
shall annually go out of office and be replaced by election, the mode of
which is prescribed for each of the parishe8.((2) By *8ect. 15, no r^QMA
person shall be entitled to attend or vote at any meeting of the ^
inhabitants of either parish for the electiomof vestrymen of such parish,
unless he shall be rated towards the relief of the poor of the said
parishes on an annual assessment of 25/. Sect. 17 enacts : <« That the

(a) Tomliruou, for the defendants, stated that a question might hare been raised whether " SL
Giles's/' for the present purpose, did not consist of the aggregate of the two parishes : but that
the verdict had been framed with a view of excluding this question. [Lord Campbbll, G. J.
Yott argue on the assumption that St. Giles's is only half a parish.]

(6) Stat 11 G. 4, e. x., s. 9, local and personal, public, enacts: "That fVom and after the
passing of this Act no public or open vestry shall be held within or for the said parish of St.
Oiles in the Fields, or within or for the said parish of St. George Bloomsbury, nor shall any
powers or authorities bo exercised by the inhabitants of the said parishes, separately or Jointly,
of any portion of them, in vestry assembled, save and except as hereinafter provided ; and that
all acts, powers, and authorities, which by the common law or statute law of this realhi may be
done and exercised, or are required to be done and exercised, by the inhabitants of a parish in
open vestry or otherwise assembled, or by the vestrymen of any parish, shall, from and after
the passing of this Act, be done and exercised within the said parishes of St Giles in the Fields
and St. George Bloomsbury, separately or Jointly, as the case may be or require, by the vestry-
men of the said parishes by this Act declared and constituted, and hereafter to be elected, save
and except as hereinafter provided." *

(e) Sects. 7, 8.

(d) Sect. 12 enacts : That, on Tuesday next before the 20th January, 1831, and on the same day
in every subsequent year, " the inhabitants of the parish of St. Giles in the Fields, and the inhabi-
tants of the parish of St. George Bloomsbury, respectively being duly qualified as hereinafter men-
tioned, shall and may severally meet in the vestry room of .their parish, or in any other place
within their parish, not being the chAch thereof, which the vestrymen of each such parish shaU
appoint, and such inhabitants of the parish of St Giles in the Fields shall proceed to elect four-
teen persona, being duly qualified householders residing within the same parish, to bo for three
years, and until others shall be elected in their places, fourteen of the vestrymen of the parish*
of St Gilea in the Fields, and snch inhabitants of the parish of St George Bloomsbury shall
proceed to elect fourteen persons, being duly qualified householders residing within the same
parish, to be for three years, and nntil others shall be elected in their places, fourteen of the
vestrymen of the parish of St George Bloomsbury, in the room of the person who by lot or
r»tatioa shall from time to time go oat of ofiice and cease to be vestrymen : Provided always,
that every vestryman who shall be determined on to go out of oflioe, or who shall by rotation
go out of office, shall be capable of being re-elected."
VOL. XVII.— 29

844 REGINA v. BASSET. T. T. 1851.

Testrymen of each of the said parishes shall sererally meet in the vestry-
room of their parish, .or at some other convenient place within sach
parish," on a day, and between certain hours, which are spec^&ed, <<and
shall then and there proceed in the execution of the powers vested in
them by this Act ;" and provision is made in this and the next clause
for subsequent meetings. By sect. 24, << the vestrymen of each of the
said parishes may from time to time elect and appoint such and so many
treasurers, collectors, officers, agents, and servants as they shall think pro-
per, and shall take such security from the treasurers, collectors, or other
receivers of money to be appointed or continued under this act, for the
faithful execution of their respective offices, as such vestrymen shall
think proper, which securities may be taken either in the name of their
vestry clerk or in the names of any five or more of such vestrymen ;**
they may suspend or remove such officers, &c., and elect others, and
may order salaries to be paid them out of the money to be raised by
such respective vestrymen under the powers of this Act. Sect 81(a)
*U^'\ ^^P^^^^ ^^® vestrymen of each ^parish to elect churchwardens
^ and sidesmen. And sect. 41 requires the vestry clerks, collec-
tors, and all other officers, ohnrchwardens, vestrymen, and persons con-
cerned in the accounts of the parishes respectively, to attend the audi-
tors of such respective parish on summons by them or by the vestry clerk
of such respective parish, and produce all books of account, &c.

Then follow the clauses providing for the joint action of the two
parishes. Sect. 42 enacts that «« from and after the passing of this
Act the vestrymen for the time being of the parish of St. Giles in the
Fields, together with the vestrymen for the time being of the parish of
St. George Bloomsbury, shall be and they are hereby constituted and
declared the vestrymen of the joint vestry of the parishes of St Giles
in the Fields and St. George Bloomsbury ; anything in the said Acts
passed," &c. (10 Ann. c. 11, and 8 G. 2, c. 19), << to the contrary not-
withstanding." And, by sect. 48, << the vestrymen of the said joint
vestry shall meet together in the vestry room of the parish of St. Giles

(a) Sect 31 enacts : '* That it shall be lawful for the Testrymen of each of the said psirishea,
and they are herebj respectively required to meet aDoually in Baster week, or within foiirieca
days after, and sererally to elect two substantial householders within their parish (noi beiB^
restrymen) to be churchwardens of such parish, and also two substantial householdens within
their parish (not being restrymen) to be sidesmen of such parish, to assist the church wardeas
in the execution of their oflice, for the year then ensuing^^nd until others shall be appointed i&
their room :" provision is then made in case of death or removal : *' and the respective ehwreh-
wardens to be appoin^d by virtue of this Act shall, when duly sworn (in addition to the powers
vested in and duties imposed upon them by this Act), have and be invested with all the powers
and authorities, and shall ba liable to perform all the duties, which churchwardens appointed by
the course of common or ecclesiastical law are invested with or are liable to, so far as the ■&»«
are not inconsistent with or are not varied or altered by this Act; and the churchwardene of tb«
laid respective parishes shall, after their appointment and during their continuance in aflrae, be
and they are hereby declared to be vestrymen of the parish of which they shaU be elected
•hurchwardens by virtue of such their offloe."

17 ADOLPHUS k ELLIS. N. 8. S45

io the Fields, *or at «#me other conTenient place irithiD the r-i^oAit
parish of St. Giles in the Fields or of St. George Bloomsbury/' ^
on, Itc, between the hours, &o.y <« and shall then and there proceed in
the execution of the powers vested in them by this Act ;*' prorision is
then made for subsequent meetings ; no or^er to be made or proceeding
taken (sect. 44) unless by concurrence of a majority of restrymen pre«
sent, the whole number present not being less than thirteen.(a) [Lord
CiMPBBLL, G. J. — Under Sir J. Hobhouse's Act, sect. 28, the number
of restrymen, in parishes adopting the Act, may be from 12 to 120
according to the population. Do you say that this democratic consti-'
lotion may be adopted for the parish of St. Giles, while the former
aristocratic constitution continues in St. George's ? One vestry might
rery much outnumber the other.] That is as the population of St.
Giles may be. [Lord Campbell, 0. J. — It might become a case .of
ffwampiDg.] The local Act then gives to the joint vestries the power
of nominating overseers and directors of the poor of the joint parishes,
fects. 58, 62, and treasurers, bankers, chaplains of the workhouse,
derks, governors, matrons, collectors of poor rate, assistant overseers,
and beadles, sect. 51, and of ^making a joint poor-rate for the r^io^i^
parishes, sect. 86. By sect. 27 of stat. 1 & 2 W. 4, c. 60, the ^
vestry elected in any parish under this Act <« shall exercise the powers
^ and privileges held by any vestry now existing in such parish." A
proviso is added, <« that nothing in this Act shall be deemed" << to re-
peal, alter, or invalidate any local Act for the government of any parish
by vestries, or for the management of the poor by an^ board of direc*^
tors and guardians, or for the due provision for Divine worship within
the pi^rish, and the maintenance of the clergy officiating therein, other-
wise than is by this Act expressly enacted regarding the election of
vestrymen and auditors of accounts." Sect. 78 of the local Act pro-
vides «< that the several laws relating to the overseers of the poor, and
for the relief, maintenance, and employment of the poor, shall continue
in force within the said parishes of St. Giles in the Fields and St. George
Bloomsbury, except where the same are altered or are inconsistent with
this Act." And sect. 87 enacts : <« Thmt from and after the passing of
this Act no rate for the relief of the poor shall be made or raised within
the said parishes without the consent of the vestrymen of the said joint
vestry, or by any other wajs or means than are directed by this Act ;

(a) Seat 44 wmbU i " That all orders and proooedings of tho restrymen of the laid Jaioi
▼Mtry la the ezooutioii of this Aet shall bo made and taken at a meeting or meetings to be heU
ia funamnte hereof, and not otherwise (exeepi in eases herebgr otherwise partioalarly pre-
Tided for) ; and no sneh order or prooeeding shall be made or taken onless the miO^^^tj of
the Testiymeii present at the respective meetings shall eononr tlierein ; and all orders and pro-
•sedinge whieh are hereby directed to be made or taken by or before the said Yestrymen, and aU
the powers aad anthorities hereby vested in them generally, sha41 and m^ be made, taken, aad
szereiMd bj the msjority of the vestrymen who shall be preoent at saeh meeting, the whole
Bsmber of rerstrymen present at any sueh meeting not being 1 ess than thirteen (except Ia oasei
where any other number is by tUa Aet named for any pevtfttt]«r purpote)."

847 KEGINA v. BASSET. T. T. 1851.

and all moneys arising by or from the rates ^ be made by virtae of
this Act for the relief of the poor shall be and are hereby vested in the
vestrymen of the joint vestry of the said parishes, for the joint use of
the two parishes :*' the overplus after paying costs of collection, and
taxes, costs, &;c., charged by law upon the poor rates, to be applied by
the directors in paying for «< the relief, maintenance, and empIoymeDt
of the poor of the said parishes."

^OMQ-} Under the local Act, therefore, these are two parishes, *jointly
^ maintaining their poor ; each providing for its own poor and that
of the othef. Each, then, is a <« parish" within the broad sense given
to that word by stat. 1 & 2 W. 4, c. 60, s. 41. [Coleridgb, J.— As
yx>n contend, if the whole of St. George's parish were unwilling, thej
might yet have this Act put upon them. Lord Campbell, G. J. — And
be juled by the vestry elected under it. Coleridge, J. — Yet the prin-
ciple of Hobhouse's Act is that the adoption of it shall be* voluntary.
Lord Campbell, C. J. — In point of law could it be adopted for the
joint parishes, if both were willing ?] It could. [Lord Campbell, C.
J. — Then it can hardly apply to a half. Coleridge, J. — If both, by
majorities of the rate-payer, concurred in adopting the Act, would it
be a place <« maintaining its own poor" within stat. 1 & 2 W. 4, c. 60,
for which such adoption would be available ?] It would seem that each
parish, individually, ought to adopt it. The directions in sects. 2 and
8, relative to the «< churchwardens of the said parish," are hardly con-
sistent with the supposition that the two constitute one for the purpose
of that Act. The whole question turns on the meaning of the word
«< parish" in Hobhouse's Act : whether it must necessarily mean a place
maintaining its own poor individually and entirely. Such a con8tra^
tion would excUide many parishes from the benefit of the Act. [Lord
Campbell, C. J. — Incorporated parishes are very different from this,
which is an ancient parish subdivided.] The argument that a dispro-
portionate number of vestrymen might be elected from St. Giles's is not
conclusive. [Lord Campbell, C. J. — It has weight only when we are
considering the probable intention of the Act.] The intention was to
♦S4Q1 8'^® * broad basis. [Lord Campbell, C. J. — With ♦consent of
^ those concerned : that is, according to the will of a majority of
rate-payers within the area. If the Act were introduced into both
parishes as constituting one, each part woulc|^have the influence it ought
under Hobhouse's Act : if it is adopted only by half, one half has not
that influence, and is subject to the other.] The other may adopt the
Act also. If the parishes could legally adopt the Act together, there
would be no disadvantage ; this, however, does not seem to be an ad-
missible construction. The whole was originally St, Giles's parish;
but that does not seem material to the present question. [Lord Gamp-
bell, C. J.— No.]

TomltMonj contr&, was stopped by the Court.

[*350

17 ADOLPHUS & ELLIS. N. S. 349

Lord Campbell, C. J. — Whether Sir John llobhouse's Act could ap-
ply to the whole of that which was the ancient parish of St. Oiles in
the Fields, we are not called upon to say : to the half it clearly cani^ot.
I think this never was contemplated by the Legislature ; and it would
be most unjust to force upon St. George's parish the necessity of act-
ing with a body elected by St. Giles's under a totally different constitu-
tion, which might nullify all their influence and annihilate their rights,
and, as to the making of rates and for other purposes, subject them
entirely to the tyranny of the new power. I think that, with regard
to Hol)house's Act, the present parish of St. Giles is a parish and not
a parish. It is one half of a parish ; and this half cannot force a new
constitution upon the other. I have no hesitation in saying that oui^
judgment ought to be for the defendants.

^CoLBRiDOB, J.(a) — I am of the same opinion. The Legisla-
tare, in passing stat. 1 & 2 W. 4, c. 60, contemplated an entire
body, and deemed it essential that the change to be effected by the Act
should not take place unless assented by two-thirds of that body. Here
the attempt is to bring under the operation of the Act a wMe body
which has neither assented to nor been consulted upon it, and may be
entirely opposed to it. •

Erlb J. — This proceeding could be supported only on a supposition
that the parishes of St. Giles and St. George, which are in effect one
parish for the purpose of maintaining their poor, were co-operatiijg to
obtain the benefit of Sir J. Hobhouse's Act. At present the rights of
the two, as jointly maintaining their poor, are regulated by the local
Act, 11 G. 4 & 1 W. 4, c. X. If the half of that which is to be oon-
Bidered as one ,parish under the local Act could take the benefit of
Hobhouse's Act alone, it would very materially affect the rights of the
other half in their vestry, they remaining subject to the statute of 11
6. 4. It is clear that the parishioners of St. Giles's hate no right to
affect the parishioners of St. George in this manner against their will.
The claim set up is in effect a claim by one half of a parish to take the
benefit of Sir J. Hobhouse's Act without the consent of the other, and
cannot be maintained. Judgment for the defendants.

(a) PAtteaoa, J., left the Court when the oaee wm called on, being a nte-pajer of one of the
ptriibea.

•ROBERT BIDDULPH v. CHARLES MORTON CHAM- j.^^..
BERLAYNE. June 12. L "^^

Aetion for » libel. Pie* jaitifying, as tme, part of the libel, which eomprised MToral libellooi
allegatioas. Replication Do I^Jaria. On the trial, the Jndge aiked the Jnry to find aeparatelj
as to the truth of the Mveral allegations Jnetifled. The Jnry found that some of the allegationa
were not true, and that othen, forming an important part of the libel, were tme. A general
rerdiet was entered for the plaintiff. A judge made an order that the Maiter should not
allow plaintiff the costs of tho witnesses called only to disprore that part of the plea which
was found to be true. On a motion to rescind this order,

851 BIDDULPH v. CHAMBERLAYNB. T. T. 1851.

Hel4, l»7 Lord Campb«ll| 0. J., 'Patteson and Coleridff«i Ja., that tha order wm impiopv,

the ieeoe being indiriaible.
Brie, J., dUseoUente.

dRBAVBS, in the present term, obtained a mle Nisi to rescind an
order of Patteson, J., made in this canse, that the Master on taxation
disallow the costs of such witnesses for the plaintiff as were called onlj
to disprove the existence of a nuisance.

The action was for a libel,* contained in a letter published in a nevs-
paper, stating as follows : That defendant had complained, a tweh^
month before, to the plaintiff that an open ditch and cesspools, on
plaintiff's premises near Ledbury, were injurious to public health, and
a nuisance; that plaintiff after fencing with defendant's questions
refused to do anything ; that proceedings were taken before the magii-
trates, under stat. 11 & 12 Vict. c. 123, to remove the nuisance, which
were defeated by technical objections on the part of plaintiff; that the
ditch was a nuisance which for many years had occasioned typhus fe?er
in the neighbourhood ; that plaintiff had full notice of this, and that the
nuisance #till continued unabated. The defendant pleaded (among other
pleas) one which was so worded as to leave it ambiguous whether it was
conteed to the part of the libel which imputed that defendant had
maintained a nuisance, or was pleaded to the whole of the libel of which
«oc9i ^^® substance is above set forth. It *averred the truth of each
-^ of the facts above stated. Replication : De injuri&.

On the trial, before Patteson, J., at the Croydon Spring Assizes,
1851, the bulk of the evidence called on each side was as to the nature
of the ditch in question, and the prevalence of typhus fever in its
vicinity. The jury, in answer to questions put by the learned Judge,
found that the ditch was a nuisance, but that other statements in the
libel, the truth of which was averred in the plea, were not true. The
learned Judge directed a verdict for the plaintiff on this issue, with
leave to defendant to move to enter a verdict for him in case the Court
should be of opinion that the plea, so far as material, was confined to
that part of the libel proved to be true. Whately^ in Easter Term last,
obtained a rule Nisi accordingly, which was discharged in that Term.
Patteson, J., then made the order m question.

Whately and Phipson now showed cause. — The plaintiff*, having bj
the replication, De injuria, put the whole plea in issue, was, as this
Court has determined in the present cause, entitled to the verdict,
unless the defendant proved the truth of every material allegation in
the libel to which it is pleaded : (a) but, though the plea is for the purpose
of the verdict entire, it is not indivisible for every purpose. A plaintiff
always has the power to divide such a plea as this, by admitting such
of the allegations as are true and replying De injurifi absque residao
causae to the rest ; if he does not choose to adopt this course, he should

(a) See Regtna v. Newmao, 1 B. A B. 558 (EL C. L. B. toL 72).

17 ADOLPHUS & ELLIS. N. S. 858

not be allowed the costs of those allegations which he has unnecessarily

tnd untruly put in issue. [Lord *Campbell, C. J. — It would r^eoco

be equitable in the present case to deprive the plaintiff of those ^

costa. The sole question is, Has the Court a discretionary power to do

so, the issue not being divisible on the record ?] For the purpose of

costs, each distinct allegation may be viewed as a distinct issue. No

witnesses ought to be allowed unless material : how can it be said that

witnesses called only to prove a fact which was disproved can be

material? Prudhomme v. Eraser, 2 A. & E. 645 (E. C. L. R. vol. 29),

goes much farther than is required. There the libel was considered so

far divisible that the defendant was allowed the costs of that part not

proved by the plaintiff: here it is only asked that the plaintiff may not

have those costs. That case also shows that the fact of the verdict being

entered generally is not conclusive as to costs. So also does Welby v.

Brown, 1 Exch. TTO.f The jury in this case might have returned a

special verdict, finding some averments in the plea one way and some

the other. Every material allegation is in substance, though not

formally, a separate issue.

QreaveSy contrd*. — The jury are sworn to try the issue joined, not to

try every separate fact ; but, if the rules as to costs, now contended for,

is to apply, it becomes a matter of right to have the verdict of the jury

on each separate averment, as much as where there are separate issues.

[Lord Campbell, C. J. — The rule might be, that, where the Judge in

hid discretion thought fit to ask the jury tq find the facts separately,

the costs should follow their finding, without laying it down. either that

the party should have a right to require that *the opinion of the r^ioci

jury should' be taken separately, or that, where the facts were ^

not founl separately, the Master on taxation should enter on the

inquiry.] No such rule has eyer been laid down ; and it would be very

inconvenient if such a rule did exist. The Judge at Nisi Prius often

finds it convenient to ask the jury specific questions in order to raise a

point of law for the Court ; and it would be hard if his doing so should

affect the costs. Besides, the Court have not jurisdiction to deprive

the plaintiff of costs on a verdict on an indivisible issue ; if the issue be

such that the other side has, or might have, a judgment, the case is

different. Thus, where the issue is divisible and the defendant may

have a judgment as to part, as. in Williams v. Great Western Railway

Company, 8 M. ft W. 856,t or where from the actual form of pleadings

he has a judgment, as in Daniel v. Barry, 4 Q. B. 59 (E. C. L. R. voL

45), the costs are disallowed ; but not otherwise ; Anderson v. Chapman,

5 M. k W. 488.t

Lord Campbell, C. J. — I am of opinion that the rule must be made
absolute.

The question raised is whether, with respect to the allowance of
costSy an issue can be considered distributive, which cannot be divided

854 BIDDULPH v. CHAMBERLAYNB. T. T. 1851.

on the record because it is taken on one entire plea. I feel great diffi
culty in seeing how it can be done. In all the cases cited the. issue
might have been divided on the record, and a finding might have been
entered on one part of it for the plaintiff, and on the other for the
i^ofitrt defendant ; but, where, as in the present case, the ^plaintiff is
-' entitled to the verdict on the entire issue, it is diflScuIt to see
how, for the purpose of taxation of costs, we can distinguish between
the several allegations in the one entire plea. That has never been
done hitherto ; and it would often have been done, but for the incon-
venience of the course. It is not proposed in this case that the Master
shall on taxation always inquire whether the different allegations were
proved. The defendant's counsel ask that the rule should be confined
to cases in which the Judge has put specific questions to the jury, and
they have found that certain allegations have not been proved. But,
if that were the rule, it would be a matter of accident whether tbe
plaintiff got these costs or not, unless it were to be established that the
defendant had a right to require the Judge to put the allegations to the
jury separately ; which would, I think, be most inconvenient. In the
particular case justice would be done by adhering to my brother Patt^
son's order: but I think it would be an excess of our jurisdiction and
would lead to much inconvenience in other cases.

Patteson, J. — This question could not have arisen unless I had pot
specific questions to the jury as to the different allegations in the plea;
for, if I had left the issue generally to the jury and they had found a
general verdict, it could not have been known what allegations they
thought disproved. Now the questions were put by me quite alio
, intuitu ; and I think the fact that such questions were put ought not
to affect the costs. In this case there is one single issue, indivisible so
^Q-^-| far as regards the verdict. It is contended *that the issue maj
^ nevertheless be divisible as to costs. It is quite clear that it is
not divisible for the purpose of giving the costs of those allegations
which were disproved to the defendant ; but it is urged that, though
not divisible so as to give the defendant those costs, it may be so divi-
sible as to deprive the plaintiff of them. I think the precise question
has never before been raised, as the attempt has always been to give
costs, not merely to deprive the other side of them ; but I am of opi-
nion that we ought not to establish the rule as asked for now. I made
the order with a view to justice ; I am now convinced that, to do so, I
rather wrested the law, and was wrong ; and that the present rule most
be absolute.

Coleridge, J. — The safe course is to limit the rule of Hil. 2, W. 4,
I. 74,(a) to issues which may be found on the record. That I think is
the meaning of the general rule made by all the Courts for the purpose
of rendering the practice uniform ; and, if it is to be extended in the

(a) 3 B. A Ad. 3S6 (E. C. L. R. voL 23).

17 ADOLPHUS & ELLIS. N. S. 856

■ ■ ■ ■ . .

manner now sought, it ought to be done by a general rule of all the
Conrtfl. That alone I consider a sufficient reason for setting aside this
order. But, further, I cannot but think, that if, to advance what we sup-
posed to be the justice of this case, we were to extend the rule as asked,
we should lay down a most inconvenient rule of practice. If an issue,
indivisible for the purpose of the verdict, may be divided for the pur-
pose of costs, I do not know where to stop ; the party would have at
lesst an equitable right in all cases to ask the Judge to put the allega-
tioflg separately ; which *would be very inconvenient. But that is r^ofin
not all : it would follow that the Master must as it were re-try ^
the cause, so as to ascertain the materiality of each witness as to each
allegation. I think it much better to adhere to the rule than wrest
it for the supposed justice of the case. I say supposed justice; for
it mast be remembered we have not complete knowledge of all the cir-
cnznstances.

Erle, J. — My opinion is not material: but I should have thought

the principle of Prudhomme v. Fraser, 2 A. & E. '645 (E. G. L. R.

vol. 29), was a precedent for this order. The libel in the present case

contained several libellous allegations, and was in effect several libels.

The defendant pleads a plea justifying both the allegation that there

was a nuisance, and those that the plaintiff had otherwise misbehaved

himself. The plaintiff puts in issue the whole plea; which I think

was, in substance, one plea to. two causes of action. The Judge had a

right, if he thought proper, to ask the jury what their opinion was as

to each allegation separately ; and the jury had a right, if they pleased,

to return a special verdict, finding as to each allegation separately ;

and, though perhaps in strictness they ought not to be directed to

consider how much of the libellous matter was true when estimating

•damages, I suppose there is no doubt the jury would do so in fact.

Then, the issue being divisible for all these purposes, I should say that,

according to the principle of Prudhomme v. Fraser, the issue might be

considered divisible for the purpose of taxation ; and that we might

refuse to allow the plaintiff *the costs of attempting to negative

[*368

that part of the plea which was proved.(a)

Bule absolute, (i)

(a) See bUL 15 A 16 Vict e. 76, ••. 77, 81, 223. No general rule apportioning the oosti of
iflfaee fafee jet been made under Met 223 ; so that it ie apprehended that, where there is a general
dcDul of » pleading, the costs of all the aUegations, whether proved or disproTed, most foQow
the finding, as before the statute, aeeording to the principal case.

(6) Reported by C. Blackburn, Esq.

VOL. XVII. — 80 u 2

858 CHELSEA WATERWORKS CO. v. BOWLET. T. T. 1861.

The Governor and Company of CHELSEA Waterworks v. WILLIAM
BOWLEY. June 18.

A waterworks Oompan j, ineorporated in parsaanee of a local Aet, wer« empowered to Uy pipci
in the streets, roads, Ae., and did lay pipes aoeordinglj. Tbe Company were assessed is the
land tax, as holders of land in a district within which they had pipes laid down, bat in whiek
they had no other property ; and their goods were distrained for land tax.
In an action of trespass for so taking the goods of the Company : Pica : Not Gnilty, by statots*
Held : That they were not liable to be assessed to the land tax for the land oeenpied \iy thtir
pipes.

Trespass for seizing goods. Plea : Not Guilty, by statate. Issm
thereon.

By order of a Judge, and by consent of the parties, a case was stated
for the opinion of this Court.

The substance of the case was, that the Company were incorporated
for the purpose of erecting waterworks by a charter of incorporation
granted to them in 9 6. 1, in pursuance of stat. 8 6. 1, c. 26 ;(a) and
that their powers "were enlarged by further letters patent granted in 7
G. 2, and by stat. 49 G. 3, c. clvii.(6)

*5lf;Ql ^^bcy '^^^^ empowered, among other things, to purchase and
^ hold lands, not exceeding in value lOOOZ. ; and also, by sects. 8
& 9 of Stat. 8 G. 1, c. 26, to lay pipes from their waterworks throngh
the streets, roads, &c., in and about Westminster.

In pursuance of their powers, they did purchase lands, lying entirely
within, the parish of St. George Hanover Square, on which their water-
works and reservoirs were erected ; and from thence laid down pipes
through the streets, &c., in the adjoining parishes of St. Margaret and
St. John Westminster. The Company had no other interest in the*8oil
in those last-mentioned parishes than arose from their having the pipes
thus laid down. They w%re in 1847, for the first time, assessed to the*
land tax by the Commissioners of the Division consisting of St. Mar-
garet and St. John Westminster ; the property in respect of which they
were so assessed was described in the assessment as « Land occupied
by the mains and pipes and other apparatus of the said Governor and
Company for the conveyance and supply of water." The defendant, by
the authority of the Commissioners, distrained for the rate. The qnes-
tion submitted tp the Court was, Whether the Company are liable to be
assessed towards the land tax within the said Division of St. Margaret
and St. John under the circumstances above set forth.

The case was argued in this term (June 6tli) (c) by Crowder for the
plaintiiT and Willes for the defendant. The arguments on both sides
sufficiently appear in the judgment. Our. adv. vulL

(a) ** For bet^r supplying the City aod Libertiei of Westmiof ter, and parte acQaoeot, with
water." See, as to the powers of the Compaoy, Rex v. The Cheleea Waterworks Conopanj, 5 B. A
Ad. 156 (B. C. L. R. vol. 27).

(6) Local and personal, pablic. " For amending an Act," Ac. (8 G. 1, c. 26), *' and for enlirt*
lag the powers thereof."

(e) Before Lord Campbell, C. J., Patteaon, Coleridge, and Brie, Ji.

17 ADOLPHUS & ELLIS. N. S. 859

Lord Campbell, C. J., now deliyered judgment.
We are of opinion that The Chelsea Waterworks *Company rutoisA
are not liable to be assessed towards the payment of land tax '-
within the division of St. Margaret and St. John, Westminster. We
shoald have had no difficulty in arriving at this conclusion, had it not
been for the decisions holding this and similar companies liable to be
assessed to the poor's rate under stat. 48 Elia. c. 2, in respect of the
same subject-matter.

The validity of the present assessment is rested on the 4th section
of Stat. 88 0. 8, c. 5 : whereby it is enacted(a) that all bodies corporate
having or holding any lands or hereditaments shall be charged to the
land tax. The question is whether, in respect of what the Company
have done, and now enjoy, under the powers conferred upon them by
sects. 8 and 9 of stat. 8 G. 1, o. 26, they can be said to have or to hold
any land or hereditament. Although it has been considered for more
than a century th%t they do not, they could not resist the assessment
if they ever were liable to be assessed to the land tax. But we think
that the parishes through which their pipes pass have acted properly
in omitting to assess them. The right in question, where exercised,
appears to us to be in the nature of an easement, and neither land nor
hereditament. The right is to convey water through the land of
another : and, whether the water is to be conveyed upon the surface of
the ground, or in covered drains, or in pipes, appears to us for this pur-
pose to be immaterial. The mere power to lay the pipes in land can-
not be considered land or hereditament ; nor *do we think that r^tn/)^
the pipes when laid can be so considered, within the meaning of '-
the* Land tax Acts. These Acts, in speaking of lands and heredita-
ments, contemplate property to be let by a landlord to a tenant, and
property the land tax of which might be redeemed. The whole scope
of the Acts is to throw the tax as a charge upon the landlord ; and the
tenant, having paid the tax, is authorized by section 17 of stat. 88 0.
8, c. 5, to deduct it out of the rent. The Company are not the owners
of the land where the pipes lie ; nor are they the tenants of this land ;
and there is no rent from which they can deduct the amount of the
assessment when they have paid it.

Again, the provisions of stat. 42 G. 8, c. 116, for the redemption of
the land tax, are wholly inapplicable to such a subject, although it was
clearly intended that thQ land tax on all property which could be con-
sidered land was to be redeemable. The moment the Company take
up their pipes which had been laid under the streets of any particular
parish, all pretence for saying that they have or hold land in the parish

(a) Sect. 4 enaeto: "Thftt all and erery manon, meiraagei, landi, and tenrtnentB/' Ac, "an4
all hereditamenti, of what nature or kind loeirer/' ritoatef Ao., '' and being within the reipectlT^
eitief, Ae., Aforetaid" (of which Wettmintter is one), " and all and erery penon/' Ae,, ** bodies
politic and corporate/' Ac, '* having or holding any inch manors/' Ac, in respect thereof shaU
be charged, ftc

861 CHELSEA WATERWORKS CO. t^. BOWLEY. T. T. 1851.

would be gone : bat, after the pipes are removed, all the land in the
parish would remain, and it would be had and held as before. •

The Bath, Brighton, and Chelsea Waterworks case8,(a) touching the
assessment of companies to the relief of the poor in respect of pipes
for the conyeyanoe of water or gas, as << occupiers of land," have been
very properly much relied upon ; for they appear to be closely in point.
* We by no means feel ourselves at liberty to overrule these cases, or
^o/joT ^^^^ ^^ express a ♦doubt whether they were rightly decided.
■J But (Mand," like the word ^Mnhabitant," which likewise occurs
in Stat. 43 Eliz. c. 2, has various meanings ; and it may, in that statute
passed to throw a charge upon the occupieTy mean the ground on which
a chattel is deposited in the exercise of an easement, although in other
acts of parliament it means a legal interest in the soil. This is the
meaning which we think it bears in the Land tax Acts : and, if so, the
Company had not, nor held, any land or hereditament which rendered I

them liable to be assessed to the land tax: and they are entitled to I

our judgment. Judgment for plaintiirs.(i)

(a) Rex V. The Corporation of Bath, 14 Bast, 800. Rax v. Brighton Qas Light Company, 5

B. A C. 4A6 (B. C. L. R. yoL 9). Rex v. The Chelata Waterworks Companj, 5 B. A Ad. 156 (BL

C. L. R. ToL 27).
(6) Reported bj C. Blaokbnm, Bsq.

The QUEEN v. The AMBERGATE, NOTTINGHAM and BOSTON,
and EASTERN Junction Railway Company. June 13.

A motion for mandamni to a Railwaj Company to oarry oat their line, which it is alleged th^
are leaving inoomplete by laohes, may by grounded on a demand made by a shareholder in
the Company itself. ••

A RIJLB nisi was obtained last term for a mandamus calling upon the
aboTCrnamed Company, established under stat. 9 & 10 Vict. c. cIt.,
local and personal, public, <^for making a railway from or near the
Ambergate Station of the Midland Railway, through Nottingham, to
Spalding and Boston, with branches therefrom, and for enabling the
Company to purchase the Nottingham and Grantham canals," and stat.
10 & 11 Vict. c. lzxviii.,(a) local and personal, public, to complete the
line of their railway from Ambergate to Grantham. The rule was
*8631 *ff'*^*®^ ** *^® instance of the proprietors of the Granthana
^ Canal NaTigation, established under stat. 83 G. 3, c. 94, and 3T
G. 3, c. 30. By the affidavits on which the motion was grounded, it
appeared that the railway had been completed and opened from Netting--
ham to Grantham, and, in the opposite direction (towards Ambergate^
from Nottingham to Bulwell ; but that the residue of the line, from

(a) Bnabling the Company to alter their UnOi and make a branoh to Nottingham.

17 ADOLPHUS & ELLIS. N. S.

BuIWell to the Ambergate station, had not been commenced : that the
Railway Company, as was believed, did not intend completing it ; and
that a committee of shareholders and directors appointed to report
npon the undertaking had (on May 5th, 1848) given their opinion against
carrying the line farther : That the opening of the portions of railway
already completed had diminished the tolls and profits of the Canal
Company, and was likely to be a permanent injury to their property:
That they had always been ready and willing to convey their Naviga-
tion, lands, and works to the Railway Company, as, by the first-men-
tioned Act, they were required to do : And that the construction of the
remaining portion of the railway would be of great public benefit.
To prove a demand on the Railway Company, affidavit was made of
their having been served, on March 8th, 1851, with the following notice,
dated the same day, and signed by Henry Thompson, stating himself
therein to be a shareholder ; but who was not one of those who made
the above-mentioned report. The service was by his clerk.

** I, Henry Thompson, of Grantham, in the county of Lincoln, Solicitor, a pro-
prietor of fi?e shares in The Ambergate, Nottingham and Boston and Eastern Juno-
tion Railway Company, hereby give you notice that, unless proper proceedings shall,
on or before the 25th day of March, instant, be taken to make and complete the
whole main line of railway and branches authorized to be made by the said Com-
pany pursuant to the provisions of *the Ambergate," te,, "Railway Act, rntooA
1846. and of the Ambergate." Ac, " Railway Amendment Act, 1847, 1 shall L
institute such proceedings as I may be advised at law and in equity for the purpose
of compelling the "said Company to complete such main line and branches, and to
restrain the said Company and the directors thereof from applying any of the profits
or other funds of the said Company to any other purpose than for the purpose of
such completion, and from doing any act which may prevent, or from neglecting to do
anytiiing which may be necessary for, the completion of such main line and branches.
Dated," Ac.

There was also an affidavit showing that, on May 12th, a survey and
inqniries had been made along the formerly proposed line from Bulwell
to the Ambergate Station, and that no preparation appeared to have
been made for constructing the railway in that direction.

Willes now showed cause. — [The Court inquired of Sir F. Kelly^
who supported the rule, for whom he appeared. Sir F. Kelly, — For
Thompson and for the Grantham Canal Company.] There has been
no sufficient demand and refusal. The Canal Company themselves have
made no demand ; and, supposing that they could avail themselves of
Thompson's demand, he himself could not regularly make it ; for he
has no authority unless as a shareholder in the Railway Company ; and
(assuming that the notice, which is the only evidence on the subject,
sufficiently proves him to be a shareholder) the reception of the report
made on May 5th shows a laches which disables any member of the
Company from making this demand. [Lord Campbell, C. J. — The
demand by Thompson as a shareholder appears sufficiently for the pre-
sent purpose.] There is no sufficient evidence of a refusal. [Erlb, J.

864 REGINA v. AMBERGATE, Ac , RAILWAY CO. T. T. 1861.

•—The omission to take anj step after the notice* is a tacit refusal.
Lord Campbell, C. J. — ^Enough appears to call upon you to show per-
formance.]

^„^-, ♦Sir F. KeUffj with whom were Peaeoek and Pearwny was then
^ called upon by the Court, as to the demand by Thompson. — [Pat-
TB80N, J. — Is there any instance of a shareholder making such an ap-
plication as this, to ground a motion for mandamus against the Com-
pany of which he ia one ? Lord Campbell, C. J. — I do not see why he
may not. It is assumed that the performance is not only their duty,
but for their advantage.] An advantage with a view to which he has
invested his money. [Pattbson, J. — He calls upon himself, among
others, to perform the duty. Lord Campbell, C. J. — He may have
been a shareholder who dissented from an adoption of the report. If
he joined in the adoption,, that might be an estoppel. I do not see an
objection otherwise.] The report was merely a recommendation sob-
mitted to the Company. [Pattbson, J. — In Regina v. The Eiastern
Counties Railway Company, 10 A. & E. 581 (E. C. L. R. vol. 37), {a)
the application was made by shareholders in the Company as well aa by
landowners.] Sir F. Kelly was then stopped by the Court.

Lord Campbell, C. J. — We all think that the rule should be made
absolute.

Patteson, Coleridge, and Erlb, Js., concurred.

Rule ab8olute.(6)

(a) See pp. 639, S49.

(6) See, M to prooeediDfi on tho m«nd»nm% Regina «. Antborgnie, Ao., Raflway Compaay, 1
B. k B. 372 (E. C. L. R. toL 72).

The QUEEN v. The LANCASHIRE and TORESHIRE Railwaj
Company. June IS.

Reported, 16 Q. B. 906, note (i) (E. C. L. R. vol. 71).

*866]

*DOB on the demise of PALMER v. MARTHA ETRE.
June 18.

Lenor of plaintiff wai the auignee of a mortgage, made more than twenty yean befera
eJeeUneat broaght ; hat the mortgagor had, within twenty yean, paid intereet on the mortgac*^
Defendant had been let into poneuion more than a year before the mortgage, by the mortgagar,
and luffered by him ae a favonr, to oeenpy the premiaee withont payment of rent, and withoet
any written acknowledgment The mortgagor's right of entry as against defendant aecraeC
under itat 3 A 4 W. 4, o. 27, less than twenty yean before the mortgage, bat more th«a
twenty years before ejectment broaght

Held, that stat T W. 4 A 1 Vict o. S8, presenred to the lessor of the plaint, being a maw
gagee, the same right of entry as if sUt S A 4 W. 4, e. 37, had not passed : and that» tka
defendant's possession nerer haTing been snob as, before stat 8 A 4 W. 4, c 37, woold hawa
•been advene toithe lessor of the plidntiff, he was entitled to reeorer; thongh tiie marl-
gago^s right of entry within the meaning of stat S A 4 W. 4» a. 37, had aaoraed helara
the mortgage, and was barred nnder that statnta by liq^ of time befna eoauBenessMat
of the aetion.

17 ADOLPHUS & ELLIS. N. S. 896

Ejectmbnt for a hoase. On the trial, before Gresswell, J., at the
last Spring Assises at York, it appeared that, in 1828, John Eyre, the
owner in fee of the house, mortgaged it, with other property, for a term
of 500 years, to a person deceased, whose executor was the lessor of
the plaintiff; and interest had been paid by John Eyre, in 1841. The
defendant, Martha, was the sister of John Eyre. Her mother had been
tenant for life of the house ; the defendant resided there with her mo*
ther up to the time of the mother's death, in 1821 ; and from that time,
which was before the mortgage and more than twenty years before the
commencement of the action, she had been permitted by John Eyre,
who on the death of the tenant for life became entitled to the fee, to
reside there without payment of rent ; and she never had made any
written acknowledgment of her brother's title. It was contended for
the defendant that by stat. 8 & 4 W. 4, c. 27, the entry was barred.
The answer was, that the right of entry was preserved by stat. 7 W. 4
& 1 Vict. *c. 28. The learned Judge directed a verdict for the r«Q/.»
defendant, reserving leave to move to enter a verdict for the ^
plaintiff.
KnowleBj in last Easter Term, obtained a rule nisi accordingly.
Wat9on and 12. Hall^ in this term (May 80th), showed cause.(a) — The
defendant was in possession in 1821 ;. and the right of entry first ac-
crued, within the meaning of stat. 8 & 4 W. 4, o. 27, s. 2, at the latest
in 1822. If the possession of the defendant commenced in such a man-
ner that, under the old law, it would have been held possessio fratris,
the effect of stat. 3 & 4 W. 4, c. 27, s. 18, is that the right of entry
accrued in 1821 when she first entered. If she was tenant at will, or
from year to year, it accrued, under sects. 7 and 8, at the end of a
year, that is in 1822. In either way, the right of entry of John Eyre,
and those claiming under him, was barred, several years before this
action commenced. But it is said that, inasmuch as the lessor of the
plaintiff is a mortgagee, his right of entry is giv^n by stat. 7 W. 4 & 1
Vict. c. 28. That statute was passed immediately after the decision in
Doe dem. Jones v. Williams, 5 A. & E. 291 (E. C. L. B. vol. 81), in
consequence of the doubt there thrown out by Patteson, J. [Lord
Campbell, C. J. — The point suggested by my brother Patteson alarmed
mortgagees, as well it might : and, in consequence, that very learned
Judge Littledale drew the Act 7 W. 4 & 1 Vict. c. 28.] The object of
that Act was to obviate the doubt whether the mortgagee was not by
stat. 8 & 4 W. 4, 0. 27, barred as against the mortgagor. It *effec-

taates that object ; the mortgagee may enter upon the mortga-

[♦868

gor, and upon any one on whom ^he mortgagor could enter ; but it never
could be intended that a mortgagee could enter on any person. It may be
material to observe that the right of entry in the present case accrued
before the mortgage ; and therefore the question comes to be whether

(o) Before Lord Oaapbefi, 0. J., PaUoeon, Celeriage, and lilt, U.

368 DOB d. PALMER v. EYRE. T. T. 1851.

a person out of possession of land can, by a subseq^ient mortgage and
payment of interest, confer a right of entry on another, which shall con-
tinue after his own is barred. In Doe dem. Goody v. Garter, 9 Q. B.
868 (E. G. L. R. vol. 58), the lessor of the plaintiff was a mortgagee,
yet the statute was held a bar.

Knowlen and Unthanhy contra. — In Doe dem. Goody r. Garter, it
does not appear that interest had been paid within the twenty years;
most probably there was no evidence of that fact ; at all events the
Court had not their attention called to stat. 7 W. 4 & 1 Vict. c. 28, and
gave no decision on its construction. This is the first time that the
Court has had«to give the statute a judicial interpretation. Its object
was to secure mortgagees, whose title was shaken by stat. 3 & 4 W. 4,
c. 27 ; that could scarcely be effected by anything short of an enact-
ment that a mortgagee who had received payment within twenty jean
should be in the same position in which he was before stat. 3 & 4 W. 4,
c. 27 ; and, accordingly, the words of stat. 7 W. 4 & 1 Vict. c. 28, are
express, that he may make his entry <> anything in the said Act not-
withstanding." The meaning must be, that he is barred where, before
^or^q-^ stat. 8 & 4 W. 4, c. 27, he would have been barred, and not *olher-
-* wise. Now in the present case it is clear that, but for stat. 3 k
4 W. 4, c. 27, the lessor of the plaintiff would have had a right of entry;
for the possession of the defendant never was adverse to that of her
brother John Eyre, nor, consequently, to that of his mortgagee. It
would be different, probably, if the possession of the defendant had been
adverse, or if the title of the mortgagor had been extinguished under
stat. 3 & 4 W. 4, c. 27, s. 34, at the time of the mortgage.

Cur. adv. vulL

Lord Campbell, C. J., now delivered the judgment of the Court.

We are of opinion that in this case the verdict ought to be entered
for the lessor of the plaintiff. Looking only to stat. 3 & 4 W. 4, c. 27,
the action is barred ; for it was not commenced within twenty years
next after the time at which the right to bring such action first accrued
to the lessor of the plaintiff or to any person through whom he claims.
The facts that the defendant was the sister of John Eyre, and that she
held with his consent, are now immaterial ; the possession of a relation
of the person entitled being no longer deemed the possession of the heir,
and lapse of time for the requisite period, without payment of rent or writ-
ten acknowledgment, giving a title irrespective of any consideration
whether the possession was adverse. The defendant, having been tenant
at will to her brother, had been in possession more than twenty-one
years'from the time of her entry, without payment of rent or written
acknowledgment ; and under stat. 3 & 4 W. 4, c. 27, the fee woold
♦^701 ^*^® vested in her ; Doe dem. Goody *v. Carter. But we most
^ look to the statute, 7 W. 4 & 1 Vict. c. 28, upon which a Court
of law is now for the first time called upon to put a construction.

17 ADOLPHUS & ELLIS. N. S. 870

In the year' 1828, John Eyre, being seised in fee of the house in
question, mortgaged it for* a term of 500 years: the lessor of the plain-
tiff is now the assignee of the mortgage ; and the mortgagor had paid
him interest on the mortgage till recently before the commencement of
this action. His counsel contend therefore that his right of recovery
is the same as if stat. 3 & 4 W. 4, c. 27, had never passed, in which
case, there having been no adverse possession, the action would clearly
have been maintainable. The statute relied upon, after reciting that
doubts had been entertained as to the effect of the former statute «« so far
as the same relates to mortgages," enacts «< that it shall and may be lawful
for any person entitled to or claiming under any mortgage of land" to
« bring an action" « to recover such land at any time within twenty years
next after the last payment of any part of the principal money or inte-
rest secured by «uch mortgage, although more than twenty years may
iiave elapsed since the time at which the right" to brin^ such acf^ion
"shall have first accrued." This language in its natural and gramma-
tical sense applies to the present case. The lessor of the plaintiff is en-
titled to and claims under a mortgage of the house to recover which the
action is brought ; and he has brought his action within twenty years
next after the last payment of interest secured by such mortgage,
although more than twenty years had elapsed since the time at which
the right to bring the action had first accrued. The defendant's
counsel contend that the enactment must be confined to the case
*where the mortgagor has himself been and continued in posses-
sion of the mortgaged premises, or might himself maintain an
ejectment against a tenant in possession; and we are told that its
object was to remove a doubt whether, where the mortgagor had been
allowed to remain in possession more than twenty years after the for<-
feiture of the mortgage by default in repaying the mortgage-money,
although the interest on the mortgage continued to be regularly paid^
the mortgagee could maintain an ejectment against the mortgagor or
his tenants. But we must learn the object of the Legislature from the
language of the statute : and it clearly appears to have been, to make
mortgages an available security, where they were good and valid in
their inception, and the mortgagee, having received payment of his
interest, cannot be charged with any laches. This object would be
effectually defeated if we were to adopt the limited construction pro-
posed, by interpolating the words necessary for that purpose. In the
vast majority of mortgages in England, the mortgagor is not in the
actual possession of the mortgaged lands when the mortgage is executed^
and they afterwards remain in the possession of his tenants. The
mortgagee and those who advise him are perfectly satisfied if, upon
reference to a conveyancer, the title to the premises to be mortgaged,
is pronoanced good, and, upon a reference to a surveyor, the value is
found to be sufiicient. If the mortgagee receives regular payment of
VOL. XVII. — 81 X

[»371

tn DOE d. PALMER v. EYRE. T. T. 1861.

his interest under the mortgage, he never inquires, and he would not
be allowed to inquire, whether rent is regularly paid by the tenants to
the mortgagor.

The mortgagor, therefore, according to the defendant's constroction
♦QT91 ^^ ^^^ statute, by omitting to receive *rent for twenty years or
^ to obtain a written acknowledgment from a tenant, maj place
the mortgagee in the position of suddenly finding that for the repay-
ment of the mortgage-money he must look only to the personal credit
of an insolvent. On the other band it is said that, although there may
be little sympathy for a person who, like the defendant, ungratefully
and fraudulently seeks to turn long-continued kindness into the means
of robbing a benefactor, we must regard the hardship which may be
thrown upon a purchaser for value, who for twenty years has been in
undisputed possession of the estate. But a purchaser can only be
affected by mortgages executed prior to his purchase; in a register
county he must have full notice of a prior mortgage, or it is Void as
against him ; and, even without the benefit of a register, there must
have been negligence on his part if an existing mortgage is not dis-
covered. It was argued before us that the owner of an estate, who is
himself barred by a tenant having occupied twenty years without pay-
ment of rent or acknowledgment, might, by executing a mortgage, and
payment of interest to a mortgagee, vest in the latter a right of entry
which he could not exercise himself: but by such a mortgage nothing
would pass, under stat. 8 & 4 W. 4, c. 27, s. 84, the right of the owner
being extinguished at the end of the period of limitation.

A case may be put, where a person who has occupied as tenant by
Buiferance nearly twenty years without payment of rent or written
acknowledgment might be deprived of the benefit of the Statute of
Limitations by the owner mortgaging the premises and going on, for a
great many years afterwards, paying, interest to the mortgagee. Bat
^nrro-i ^^ canuot bc considered to have been *an object of the Legislature
-* to protect the interest of such a person. The mortgagor cer-
tainly may, in some cases, gain a consequential advantage by our con-
struction of the statute, although it was passed for the security of
mortgagees. Still, without this, the security intended to be given to
mortgagees cannot be enjoyed.

Seeing no inconvenient consequences which would follow from sup-
posing that the words of the Legislature were used in their natural and
grammatical sense, we think that we are not at liberty to put any forced
or limited construction upon them, and therefore .that the lessor of the
plaintiff is entitled to our judgment. ^ Rule ab8olate.(a)

(o) Reported by 0. BlMkban, Eiq.
Sm the next oMe.

17 ADOLPHUS & ELLIS. N. 8. 378

DOE, on the seyeral demises of BADDELET and WALLER, v.
MASSEY. June 18.

A tenut taking in land a4)*m°^ ^ ^i> o^n» ^7 eneroMhoient, mwit, ai between bimaelf and
the landlord, be deemed, primi facie, to take it as part of tbe dcmiied land : bat tbat pre-
lamption will not prevail for tbe landlord's benefit against third persons.

The laodlord of A. and B., adjacent closes, mortgas^d them, and afterwards demised A. Tbe
tenant of A. built npon B. without leaTe of the landlord, who, on permission being asked,
refused it, saying he had granted rights over B. to occupiers of other acyoining lands. The
tenant held both A. and B. for twenty years, paying rent to the landlord under the demise
of A., but not expressly in respect of B. Held that, on this evidence, he might insist, as
against the landlord^ on a twenty years' occupation of B. within stat 3 A 4 W. 4, c. 27, ss. 2
andl '

On a purohase of lands whioh were under mortgage, the purchaser paid the principal and
interest due on the mortgage, and took a conveyance in which mortgagor and mortgagee
joined, of tbe premises, and of the mortgagor's equity of redemption and all the residue of hia
interest:

field, that the purebaaer was a person "claiming under'* a mortgage, within stat. 7 W. 4 A 1
YieL c. 28 ; and that the twenty years' limitation under stat 3 A 4 W. 4, o. 27, s. 2, ran
from the paying off of the mortgage and interest

Ejectment for a workshop, &c., and one acre of land, in the parish of
St. James, Clerkenwell, in the *county of Middlesex. Demises,

by^Baddelej on 18th and by Waller on 12th, of April, 1850.

[*374

The plaintiff's particular of demand described the premises as a piece
of ground situate between the backs of the gardens of the houses Nos.
9 and 10, Wilmington Square, in the aboye-named parish (or part of
the said gardens), and the gardens or yard of houses in John Street,
Wilmington Square aforesaid ; together with the workshop, erections,
and buildings standing and being thereon.

On the trial, before Coleridge, J., at the sittings in« Middlesex during
last Easter term, it appeared that, in April, 1821, the Marquis of North-
ampton, being tenant in fee of a piece of ground called Spa Fields,
demised certain parcels of it to Qeorge Groodwin for 99 years : and that
Goodwin, in May, 1822, demised part of these lands, including the
ground now in question, to John Wilson, a builder, for 95 years. Houses,
9 and 10 Wilmington Square, had already been built upon the demised
lands. In July, 1822, Wilson mortgaged the lands to Benjamin €h>ode
for the residue of the term, to secure payment of 80002. In 1824,
Goode, by conyeyance to which Wilson was a party, assigned the mort-
gage to Stewart Marjoribanks and others. In June, 1825, Wilson exe-
cated a farther mortgage to George Child of the same premises, subject
to the mortgage last before mentioned.

Wilson continued in possession, and, on 26th May, 1829, demised a'
part of the mortgaged lands, adjoining the parcel now in dispute, to
Massey, the defendant, for 21 years. Massey soon afterwards requested
Wilson to grant him a lease also of the ground now in question (being
at tbat time waste) for the purpose of building? Wilson had already
granted a right of way over this ground to the occupiers of 9 and 10

874 BOE d. BADDELEY v. MASSBY. T. T. 1851.

^nnr-i Wilmington Square; *and he therefore declined to grant Maasey
^ the lease, or any permission to build on the spot ; and be told
Massey that, if he built there, he must do it on his own responsibility.
Massey then built on this piece of ground the workshop and premises
described in the particular, Wilson not interfering, and never receiving
any rent in respect of this parcel.

By indenture between Marjoribanks and his co-mortgagees of the first
part, Oeorge Child of the second part, Wilson of the third part, and'
Robert Child of the fourth part, dated 20th August, 1834, the principal
and interest due on the mortgages being then paid off, Wilson^s term
in all the mortgaged premises was assigned, by direction of Wilson, to
Robert Child (the party paying off the mortgages), to hold free from
the said mortgages ; and all Wilson's equity of redemption, and all the
rest, residue, &c., of hia interest in the premises, were at the same
time conveyed to R. Child. On his death his executors, according to
the directions of his will, sold the premises, and assigned the term to
William Croft Fish, the purchaser. On the death of Fish, his executor,
in 1846, acting under the directions of his will, sold the premises and
assigned them to Richard Rock Baddeley, the first lessor of the plain-
tiff. The other lessor of the plaintiff, Arthur Waller, claimed und«r a
mortgage from Baddeley, executed in 1846.

Massey on the expiration of his lease, in 1850, gave up the premises
demised to him by Wilson, but refused to surrender the land adjoining.

It was urged on behalf of the defendant that the action was barred
by Stat. 3 & 4 W. 4, c. 27, ss. 2, 3, for want of possession or receipt
of rent within twenty years ; and that the claim was not saved by stat.
*«i761 "^ W- * * J^ ^^c^- ^- 28, 4;he lessor of the plaintiff Baddeley *not
^ being a person «< entitled to or claiming under any mortgage"
within the meaning of that Act. Coleridge, J., directed a verdict for
the plaintiff on the first demise, giving leave to move to enter a nonsuit
The defendant had a verdict on the second demise. M. Chamben, in
last Easter term, obtained a rule nisi according to the leave reserved.
In this term,(a)

Knowlea and ffawkins showed cause. — First, the defendant cannot
dispute that he held the close in question, down to 1850, as tenant to
Wilson and his assigns. This and the close demised in 1829 were parts
of one estate which was in the hands of Wilson. The close in question
was not demised by Wilson to Massey ; and it is said that others bad
rights over it : but Massey encroached upon it with the acquiescence
if not the consent of Wilson ; and, at all events, any encroachment whicb
he made during his tenancy must be taken to have been for the benefit
of his landlord, if the contrary be not proved ; Doe dem. Lewis v. Rees,

6 Car. & P. 610 (E. C. L. R. vol.' 25), Doe dem. Dunraven v. Williams,

7 Car. & P. 332 (E. 0. L. R. vol. 32), Doe dem. Harrison v. Murrell,

(a) Jane Tth. Before Lord CampbeU, C. J., Patteeon, Coleridge, and Brl«, Jn

[*877

17 ADOLPHUS & ELLIS. N. S. 876

8 Car. & P. 134 (£. C. L. R. vol. 34), Doe dem. Lloyd v. Jones, 15 M. &
W. 580. t(a) An enclosure of waste by a tenant is to be presumed to have
been made for the landlord and with his assent, particularly where the
landlord has a reversionary interest in such waste ; Bryan dem. Child v.
Winwood, 1 Taunt. 208. If so, the close here in question was insepa-
rable from the land demised in 1829, and should have been given up
with it. [Lord Campbell, C. J. — The principle of law must be that
the ^lessee is estopped from denying that the whole premises are
those which were demised to him. It would be strange to lay
down that the tenant steals for the benefit of his landlord.] There is
nothing here to rebut the presumption that the land was taken in for
the landlord's benefit. [Lord Campbell, G. J. — If it was so taken,
the landlord is thereby entitled as against the tenant who took, but not
aa against a third person.] If that person «did not interfere for twenty
years, the fact might operate as against him. On the evidence in this
case, the tenant's conduct is not that of a person encroaching for him-
self. He applies for a lease, is told that the landlord will not interfere
(having a difficulty in granting the lease, on account of his own conduct
with respect to a right of way), and thed openly proceeds in the same
manner as if the lease had been granted.

But, further, the claim of the lessor of the plaintiff is saved by stat.
7 W. 4 & 1 Vict. c. 28, the last payment of interest on Wilson's mort-
gage having been made on 20th August, 1884. <rhat statute was
passed expressly for the relief of mortgagees, whose rights were doubt-
ful onder stat. 3 & 4 W. 4, c. 27. [Lonl Campbell, C. J. — The imme-
diate evil contemplated was that the statute of 3 & 4 W. 4 might be
held to run from a default in payment of the mortgage-money, though
the interest might have been paid for nineteen years afterwards. (6)
Bat the Act may apply to other cases.] It is true that, in this case,
Wilson's mortgage was paid off before Robert Child acquired the title
from which that of Baddeley is derived. But the conveyance to Robert
*Child was by the mortgagor and mortgagee; and stat. 7 W. 4 r«Q.^n
& 1 Vict. c. 28, preserves the right (for twenty years after any ^
payment of interest) to any person « entitled to or. claiming under" any
mortgage. [Lord Campbell, C. J. — Whatever right of entry was in
the mortgagee passed to Robert Child by the conveyance.] KnowleM
referred to the argument on behalf of the plaintiff in Doe dem. Palmer
r. Eyre, ante, p. 366.

Chambers and John Hendersorij contr Jl. — First : If the argument on
the other side be correct, Massey was a tenant at will of the land taken
in by encroachment ; and there has been no notice to determine the
will. But the encroachment could not take effect for the benefit of the
landlord, as against a third person. It was pointed out in argument,

(a) 8e« Andrews v, Hmilea, 2 B. A B. 349 (B. C. L. R. toI 75).
(6) 8oe Due dem. Jooec v, WUliams, 5 A. ^ B. 291 (E. C. L. R. yaV 81).

878 DOE d. BADDELEY v. MASSfiY. T. T. 1851

in Doe dem. Lloyi v. Jones, 15 M. & W. 584,t that, " in Doe dem.
Coldough V. Mulliner, 1 Esp. N. P. C. 460, Lord Kenyon ruled, that
an encroachment bj the tenant on the waste did not belong to his land-
lord, and is reported to have revolted at the idea that the tenant coolJ
make his landlord a trespasser." Alderson, B., remarked, in the first
cited case : «« The answer to that is, that the presumption may be re-
butted by the repudiation of the landlord, as well as by the acts of the
tenant.'* Here the landlord refused altogether to countenance the
encroachment. In Doe dem. Golclough v. Mulliner, the lord was a third
person, whose rights could not be affected by anything that* took place
between the landlord and tenant : so, in the present case, was the mort-
gagee. In Doe dem. Dunraven v. Williams, 7 Gar. k P. 333 (E. C. L
R. vol. 32), Coleridge, J., said: ««Prim& facie, the law presumes that
♦^7Q1 *^^^U enclosure made by a tenant adjoining the demised premises

-* was made by him for the benefit of his landlord :" but he added:
i^and there is no evidence in this case to rebut that presumption.'* ^'If
you think that the defendant enclosed the land in question, as he has
said he' did, as being part of the premises comprised in his lease, his
possession was not adverse." * The question is one of evidence : and
here it was not put to the jury to say whether, in fact, the act of en
croachment was done for the landlord's benefit. [Lord Gampbsll,
G. J. — We think, as to this point, that the close in question cannot be
considered part ofethe demised premises for the purposes of* the Act:
and, if it was not, there has been no acknowledgment or payment of
rent within twenty years to take the case out of stat. 3 & 4 W. 4, c
27, sects. 2, 3.]

Then, secondly, the lessor of the plaintiff is not a person << entitled
to or claiming under any mortgage of land" within the meaning of stat.
7 W. 4 & 1 Vict. c. 28. He claims under a mortgagee, in the sense of
tracing title through him, but not under a mortgage. The mortgage
in this case were at an end when the term passed to Robert Child.
[Lord Gampbell, G. J. — The mortgagees were parties to the convey-
ance ; what estate was in them ?] The legal estate. [Lord Campbell,
G. J.— -Was not the estate, such as they had, conveyed so as id vest in
Ghild ?] Ghild became possessed of the original estate under Goodwin's
lease to Wilson : the mortgage was immaterial to his right. The statute
applies only wnere there is an existing mortgage at the time of action
brought. It was to avoid doubtful questions between actual mortgagors
and mortgagees under stat. 3 & 4 W. 4, c. 27, that the latter Act was
^ooA-i passed. *Sect. 28 of the former statute required a written

^ acknowledgment to bar the mortgagee, but did not expresslj
make payment of interest sufficient to prevent his being barred. Thai
is remedied by stat. 7 W. 4 & 1 Vict. c. 28. If the former Act con-
templated, as its language shows, the relations of parties under existing
mortgages, the latter must be construed as having the same view. The

[*881

17 ADOLPHUS & ELLIS. N. S. 380

defendant relies on the strict words of the statute^ and a clear twenty
years' possession. When the payment took place in 1834, his occupa-
tion was not interfered with or noticed. [Patteson, J. — A mortgagee
does not consider who occupies the premises. Lord Campbell, C. J. —
No mortgagee throaghout England and Wales thinks of troubling him-
self as to who occupies the premises, if the interest is paid.] In Doe
dem. Goody t». Carter, 9 Q. B. 863 (E. C. L. R. vol. 68), it was held
that the son's tenancy under the father was not determined when the
father mortgaged the premises. The Construction now attempted would
modify the statutes very seriously. In the case, not uncommon, where
by continued non-payment the title is within a few months of being
barred, the mortgagor, by a payment of mortgage-money, may give
himself a new term of twenty years. That was not the intention of
the last statute, which was intended for the protection of mortgagees,
not of mortgagors. As long as the mortgage subsists, it enures to the
ordinary purposes of a mortgage in securing principal and interest ;
and he in whom it is vested has the statutory and other rights of a
mortgagee. But, when it is paid off, the peculiar provision of stat. 7
W. 4 & 1 Vict. c. 28, is at an end, and stat. 3 & 4 W. 4, c. 27, again
governs. *[£rlb, J. — Do you draw any distinction between the
mortgagee himself and the assignee of a mortgage? Do you
say that, if a mortgagee takes an assignment of the equity of redemp-
tion, he thereby loses the twenty years given by stat. 7 W. 4 & 1 Vict,
c. 28 ?] Qufi purchaser, he is like any other person. [Erle, J. — Very
often the mortgagee, when payments ^et into arrear, finds a purchaser
of the mortgage and equity of redemption. You say that, as soon as a
fee simple is created, the mortgagee's security is destroyed.]

Cur. adv. vult.
Lord Campbell, C. J., now delivered judgment.
This case likewise(tt) depends upon the construction of stat. 7 W. 4
& 1 Vict. c. 28. During the argument we overruled the point, made on
behalf of the lessor of the plaintiff, that the bit of ground for which
the ejectment was brought must be considered as having been taken and
occupied by him as part of the demised premises in respect of which
rent was paid ; for the conduct of both parties clearly showed the con-
trary ; so that, as against Wilson or any one claiming under him, other
than a mortgagee, lapse of time would be a bar.

The real question here is, whether the lessor of the plaintiff can be
considered ^« entitled to or claiming under" a mortgage. He is not a
mortgagee, nor the assignee of a subsisting mortgage ; the mortgage
which Wilson had created in 1822 was paid off in 1834, when the mort<
gagee and th^ owner of the equity of redemption conveyed all their
interest to the person under whom the lessor of the plaintiff claims.

(«) Judgmtni waB girtn immedUtely before in Doe dem. Palmer v. Byre, ante, p. 366.

882 DOE d. BADDELEY v. MASSBY. T. T. 1851.

^QQty-i ^Although be is not entitled to the nunigagey we think that he
"-' claifM under the mortgage. In no other way can the ststnte be
made effectual for the protection of mortgagees. According to the
construction we put upon it in Doe ,dem. Palmer v, Ejre, ante, p. 366,
the mortgagee might have maintained an ejectment after the expiration
of the twenty years, or he might have transferred this right of action
by assigning to another who paid him off. But, suppose that the mort-
gage-deed contains a power of sale, may the mortgagee not transfer
the same right to a purchaser ? Is the purchaser barred by the lapse
of time, and may he recover back the purchase-money which went in
satisfaction of the mortgage T If so, the mortgagee who has regularly
received payment of his interest may entirely lose his principal from
the mortgagor having omitted to receive rent or an acknowledgment
from the tenant for twenty years. On payment of the mortgage-money
the mortgage ceases to exist as a security for money ; but the person
to whom the mortgagee conveys his legal interest elaime under the mort-
gage, although the equity of redemption should likewise be convejed
to him.

We are therefore of opinion that the lessor of the plaintiff is entitled
to our judgment, and that the rule to enter the verdict for the defend-
ant must be discharged. Rule discharged.

♦383] ♦ABRAHAM HIRST v. JOHN HANNAH. June 17.

A warrant of attorney, to confess Judgment a* a aeonrity for advaneei, was attested in due fora
by an attorney, acting for defendant and as his attorney, and at his request, but who also
acted, in the transaction, for the plaintiff. Defendant was informed that the attorney had
been consulted by plaintiff.

The warrant was executed on Oth March, 1847. Judgment was signed on 19th July, 184T;
and a fi. fa. shortly after issued, but was not executed.

The plaintiff, after the judgment was signed, gave fresh credit to the defendant in the way of hli
trade. On 28th June, 1850, a levy was made. None of these facts were oonoealed. Th«
defendant was adjudged a bankrupt on 29th July, ^50. A rule to set aside the warrant of
attorney and all subsequent proceedings was obtained in Trinity term, 1851.

Held, that, by stat. 1 A 2 Vict o. 110, s. 9, the attorney acting for the plaintiff oould not ui
as attorney for the defendant, and that the objection, being made, must prevaiL

Held, also, that the circumstances above stated did not preclude the assignees of the baokrnpt
defendant from raising the objection.

SembUf that lapse of time after execution levied, and other circumstances showing that tb«
plaintiff was knowingly allowed to alter his position on the faith of a Judgment thos obtained,
may preclude the defendant or his representatives from raising the objection. Sed Quart,

Atherton, in this term, obtained a rule Nisi to set aside the war-
rant of attorney, and judgment, and all ulterior proceedings in this
cause. From the affidavits on both sides it appeared that, on 6th March,
1847, the defendant^xecuted a warrant of attorney to confess judg-
ment in the Court of Queen's Bench for 4000/., with a defeasance
stating that the judgment was to be to secure payment of 20001. by
certain instalments, and that no execution was to be issued till default.

17 ADOLPHUS & ELLIS. N. 8. 883

The warrant of attorney was duly filed ; and judgment was entered up
on 19tli July, 1847. Soon after, default was made in payment of the
4r8t instalment ; and a writ of fi. fa; then issued, but execution was
stayed by the plaintiff. On 28th June, 1850, a levy was made, and the
goods seized. Hannah, the defendant, was adjudged a bankrupt on
29th July, 1850.

The present rule was obtained, on 28th May, in this term, on behalf
of Hannah's assignees, on the Aground that the warrant of at- r^coo^
torney was not duly attested. It was attested by an attorney A
in due form ; but the objection made was, that he was at that time the
attorney acting for the plaintiff. As to this, the facts appeared to be,
that the witnessing attorney was acquainted with both Hirst and Han-
nah ; that Hirst first consulted him as to the kind of security he could
have, when he suggested a warrant of attorney ; and that, afterwards,
Hannah, of his own accord, came to the attorney, and requested him
to prepare a warrant of attorney. Hannah now deposed expressly that
he employed the attorney as his attorney ; that in selecting him he was
not influenced by Hirst, but solely by his confidence in an old friend ;
and that he, and he only, paid the bill of costs ; but it was not denied
that, besides the previous consultation with Hirst, of which Hannah
was informed by the attorney on their first interview, the same attor-
ney received the warrant of attorney from Hannah and kept it for
Hirst, and acted as Hirst's attorney in entering up judgment and issu-
ing execution.

It further appeared that no concealment was practised; that the
petitioning creditor, and assignee of Hannah, was aware of the judg-
ment ; and that Hirst sold Hannah goods on credit, in the ordinary
course of business, after the judgment was signed, which, it was de-
posed, he would not have done, had he not believed the judgment was
a valid security.

Watson^ Cowling^ and Hugh Hill now showed cause. — The enactment
in force on this subject is stat. 1 & 2 Vict. c. 110, s. 9, which enacts
that (« no warrant of attorney '*'to confess judgment in any per- r^eo^^
sonal action, or cognovit actionem, given by any person, shall ^
be of any force unless there shall be present some attorney of one of
the superior Courts on behalf of such person, expressly named by him
and attending at his request, to inform him of the nature and effect of
such warrant or cognovit, before the same is executed ; which attorney
shall subscribe his name as a witness to the due execution thereof, and
thereby declare himself to be attorney for the person executing the
same, and state that he subscribes as such attorney." Now here the
attesting witness is shown by the affidavits to have been retained by
Hannah and expressly named by him. [Patteson, J. — But he had
been in previous communication with Hirst, and advising him on the
matter : and, when the warrant of attorney was executed, it was given
VOL. xvn.— 82

885 HIEST ». HANNAH. T. T. 1851.

to bim to keep for Hirst. Now, in Sanderson v* Westley, 6 M. & W.
98, 100,t it was said by my brother Alderson : " Wherever there is but
one attorney present, it ought to be perfectly clear that he is not the
plaintiff's attorney." Erlb, J. — In the present case it seems clear that
the attorney was named by Hannah, and was bonfi fide acting for Han-
nah ; but it seems also that he was acting as attorney for Hirst. Lord
Campbell, C. J. — The question, therefore, must be whether, consist-
ently with the decided cases, a warrant of attorney so attested is valid.]
In WaJton v. Chandler, 1 Com. B. 806 (E. C. L. R. vol. 50), the war-
rant of attorney was held valid, though the attesting attorney was in
effect but the agent of the plaintiff's attorney. [Pattbson, J.— The
defendant there had the opportunity of consulting a person not engaged
^oo/i-i for the plainliff as the attorney here was. Lord Campbell, *C.

-^ J. — Tou cite the case as if the subscribing witness there waa
really acting under the plaintiff's attorney, and only nominally the de-
fendant's attorney. But, whatever the facts might be, the Court in
Walton t;. Chandler upheld the warrant of attorney on the ground that
they thought the attesting attorney was in fact the attorney of the de-
fendant only.] In Haigh v. Frost, 7 Dowl. P. C. 743, the facts were
exceedingly like the present. [Coleridge, J. — There the decision of
the Court proceeded on the express ground that in fact the attorney
was not acting for the plaintiff.(a)] At all events, the present appli-
cants cannot be permitted to raise the objection ; it has been waived
by lapse of time. When a judgment has been signed, and execution
has issued, those who come to set aside the judgment and so make all
concerned in the execution trespassers by relation ought to do bo
promptly. [Patteson, J. — Can this objection be waived ? Is not the
effect of the statute to make a warrant of attorney not properly attested
a nullity ?] It may be so ; and the judgment, founded on it, may be as
voidable as if it had been entered up without any authority at all ; but
the judgment is not void ; and the Court do not set it aside unless on
the application of some person who has a right to make that applica-
tion. Now the assignees of the bankrupt in their own time, and the
bankrupt to whom they are privy, have knowingly allowed the plaintiff
and the sheriff to act on the faith of the judgment ; execution has been
issued ; fresh credit has been given ; the parties have altered their po-
sition on the faith of this judgment ; and the assignees are therefore
precluded from taking the objection.
*^ft71 *Peacock and ffallj contrsl, were desired by the Court to»con-

-' fine thei" argument to the point whether the assignees of Hannah
were, under the circumstances, at liberty to raise the objection. The
objection to a judgment on warrant of attorney, that the warrant was
void, cannot be waived; Gripper v. Bristow, 6 M. & W. 807.t 1°
Pryor v. Swaine, 2 Dowl. & L. 37, the warrant of attorney was sel

(a) See this stated in the jndgment* 7 DowL P. C. 746.

17 ADOLPHUS & ELLIS. N. S. 887

aside five years after it was executed. In Cocks v. Edwards, 2 DowL
P. C. N. S. 55, the judgment was set aside, at the instance of the
defendant's assignees, more than a year after the proceeds pf an exectt-
tioQ levied had been paid to the plaintiff. [Lord Campbell, C. J. — If
the objection may be taken, it mast prevail ; but it is urged against you
that the defendant has taken fresh credit on the faith of this judgment,
and, after he has done so, it would be against all justice to permit him
or those privy to him to take any objection of which he was aware at
that time.] Even in such a case as is supposed, the statute i^ impera-
tive. For the purpose of preventing frauds, it enacts that no warrant
of attorney «« shall be of any force" unless the defendant has at the time
the advice of an attorney acting on his behalf. It must always be
known to the defendant that he has not had this advice ; and, ih almost
every case where the warrant of attorney is to secure a loan, the
advance is not made till after the warrant is signed. To establish the
rule therefore that a subsequent advance precludes the defendant from
taking the objection would make the statute inoperative. [Erle, J. —
Suppose that a term of years were taken in execution, and the plaintiff,
having bought it from the sheriff, proceeded to build *apon the tikqoq
premises : do you say that the defendant might wait till 10,000/. ^
was spent in improving them, and then come and as a matter of strict
law set aside the judgment and execution ?] It is difficult to say that
there are not possible cases estopping a defendant from raising the
objection ; but in the present case there are no advances beyond what
had been agreed upon on the treaty for the warrant. The general credit
given in the way of business is too remotely connected with the judg-
ment to affect the question.

Lord Campbell, C. J. — I should be unwilling to lay it down that no
lapse of time, or fresh dealings between the parties, could preclude the
defendant from raising an objection of this sort ; but, in the present
case, I cannot say it has been so clearly made out that there have been
any such fresh dealings, or alteration of the position of the parties on
the faith of the judgment, as would warrant us in laying down, for the
first time, that the assignees of the defendant are precluded from raising
the objection.

Then, they being at liberty to make the objection, and the objection
being made, it must prevail. It is clear that, though the attesting
attorney was acting for the defendant, he was also acting for the
plaintiff.

Patteson, J. — I think the words of the Act very clearly show that
the attesting attorney must be, not the attorney for the plaintiff, but
another person. 1^ think that under no circumstances, and in no case,
can the attorney who is acting for the plaintiff be the attorney for the
defendant within this statute ; and, if a defendant chooses to say that

888 HIRST V. HANNAH. T. T. 1851.

*^M1 he has confidence in the plaintiff's ^attorney, and will employ
•^ him and nobody else, he ought to be told that the warrant of
attorney wcuild be good for nothing, and that, if he persists, he cannot
have the loan or the security.

But in this case it is urged that there were advances after the execu-
tion of the warrant of attorney, that there has been a lapse of time
since the judgment was signed, and levy made, and that, consequently,
the parties are precluded from now raising the objection. And so I
should have said if it had not been for the strong words of the Act.
But it is very difficult, to separate the judgment from the warrant of
attorney which the Act says shall be of no force. And, if it may under
any circumstances be set up, so as to be of force, I have great difficulty
in saying when it is to be set aside.

Coleridge, J. — I also think the rule must be absolute on the ground
that a statute intended to prevent frauds, by requiring formalities, must
be strictly observed or it is of no avail.

Erlb, J. — I fear that formal provisions intended by the Legislature
to protect persons from frauds are too often perverted to an opposite
purpose. But I am not prepared at present to lay down any rule, the
application of which to the facts of the present case would prevent the
parties before us from raising this objection. Bule absolate.(a)

(a) Reported by C. BUokbuxn, Esq.

^„^^ *BANASTRE TARLETON, an Infant, by CTNRIC LLOYD,
"^^^J his next Friend, v. HENRY THOMAS LIDDELL and JOHN
GOBLE BLAKE. June 17.

By settlement on the marriage of J. T. and IsabeUa* afterwards his wife, a moiety of certain
lands was conveyed to trustees, to tlie use of J. T. and his assigns for his life ; remainder
to the use of Isabella and her assigns for her life ; remainder to the use of the first and other
sons of J. T. by Isabella saocessiTely in tail male ; remainder to the use of the daughters of
J. T. by Isabella as tenants in common in tail general, with cross remainders between them;
remainder to the use of the settlor, A. the father of Isabella, his heirs and assigns for erer.
J. T. was seised in fee of the other moiety.

By indentures executed after the marriage, in 1815, and to which J. T-,, his said wife, and J. C
T. his eldeat son (then of age) were parties, the settled moiety was conveyed to a tenant for
the purpose of suifering a recovery, and the unsettled moiety, with other lands of which J.
T. was seised in fee, were conveyed to trustees and their heirs : and the uses of the respeetiTS
e6nveyances were declared as follows :

As to the first-mentioned moiety, to the use of J. C. T. and his heirs during the life of J. T.;
remainder to the use of Isabella and her assigns for her life : and, as to the same moie^
afler the determination of the life estates, and also as to the moiety and lands secondly above
mentioned from and immediately after the execntian of this conveyance, to the use of J.
G. T. and his assigns for his life, remainder to the use of the first and other sons of J. C. T.
successively in tail male , remainder to the use of B. T., the younger son of J. T., and his
assigns for his life ; remainder to the use of the first and other sons of the same E. T. sne-
eessively in tail male ; remainder to the use of the first and other sons thereafter to be bora
to J. T. by Isabella or any future wife successively in tail male ; remainder to the use of M.
the only daughter of T., and her assigns for her life; remainder to* the ue of the fint and

17 ADOLPHUS & ELLIS. N. 8. 890

Other loiu of II. raeeMsiTely in tail male ; remainder to the use of the first and other

daagbters thereafter to be bom to J. T. by his then present or any future wife succefsivoly

in tail male ,* remainder to the nae of the first and other sons of the body of J. C. T. sucoes-

iirely io tail general; remainder to the nse of the first and other sons thereafter to be born

of the body of J. T. by his then present or any fntnre wife successively in tail general ;

remainder to the nse of the first and other sons of the body of M. (the then only daughter)

roecesslTely in tail general ; remainder to the use of the first and other daughters to be bom

of the body of J. T. by his then present or any future wife, suooessively in tail genera} ;

remainder 'to the nse of J. T. in fee. The recovery was suffered; A. B. being demandant,

C. D. tenant, and Isabella and J. C. T. Toochees, who Touched the common vouchee.

J. T. was a trader, within the bankrapt laws, and executed the conveyances of 1815 with intent

to delay and defraud his ereditors: but J. C. T., his son, was not privy to that intention. J.

T. became bankrapt; and his assignees filed a bill in Equity to set aside the deeds of 1815,

ud the recovery; and a decree was made, declaring the same void as against the ereditors,

and the assignees entitled to the lands ; it was also ordered that the indentures should be

given up to the assignees to be cancelled, which was done.

The assignees afterwards agreed to sell their interest in J. T.'s estates to J. C. T. : and by

indentures of July, 1821, made for the purpose of barring all estates tail, remainders, ^c, in

and expectant on the first-mentioned moiety, and for limiting the same as after mentioned,

J. C. T., and the assignees at the request and for the accommodation of J. C. T., bargained,

sold, and released, Ac, the first-mentioned moiety to C. D., in order that he might be tenapt

to and suffer a recovery, which was declared to enure to the nse of the assignees during the

life of J. T. the father, and, from and after his decease, to the nse of J. C. T. in fee ; the

release to be void on non-payment of purchase-money by J. C. T. The recovery was suffered

accordingly, J. C. T. being vouchee. And afterwards, by indentures of March, 1823, reciting

payment of the said purchase -money, the assignees bargained, sold, and released, Ac, to J.

C. T., the life estate of J. T. in the first-mentioned moiety, and the fee simple in the other

moiety.

Afterwards, J. T. and his wife died; and J. C. T. sold, and, in 1849, conveyed by deed, the fee

simple of the entirety to a purchaser for value.
On a case stated for Uie opinion of this Court, whether the eldest son of J. C. T. had any and

what estate or interest in the first-mentioned moiety : Held :
That the deed of 1815 was made by J. T. without consideration, and was fraudulent and void

as against creditors by stat 13 Elis. c 5, and that nothing passed by it to J. C. T.
That, J. C. T. being a party to the recovery, its operation as to him was not preserveu by stat. 13
Eliz. c. 5; a. 4. But that it barred the estates of the younger brother of J. G. T., his sister,
and the original settlor, they being persons having remainder or reversion within sect 4.
That, if the release of 1815 was, under these circumstances, wholly vitiated, the recovery of
1815 operated, not to the former uses, but as a simple recovery without any deed to lead
nses: and that J. C. T. thereupon became tenant in fee; and that, even if be had* continued
tenant in tail, his estate became a fee simple by the recovery and deeds of 1821 and 1823,
and, consequently, his eldest son had now no interest
That, whatever order might have been made by the Court of Chaneery, if J. C. T* had inter-
posed to prevent the deed of 1815 (to lead uses) from being entirely cancelled, the recovery,
as the case now stood, enured to the use of J. T. for life (which interest passed to his
assignees), with remainder to J. C. T. in fee; all the uses declared by the deed of 1815 being
void. And
That, even if, ander that deed, J. G. T. had become tenant for life in remainder with remainder
to his first son in tail, yet the conveyance by that deed was a voluntary conveyance within
stat 27 Elia. o. 4, and void (notwithstanding the recovery in 1821) as against a purchaser
for value; and that, on the conveyance to such a purchaser in 1849, the interest of J. G. T.,
having become by the recovery of 1815 (for want of a deed to lead nses) a fee simple interest,
was, by the conveyance of 1849, transferred to the purchaser.

ViCB Chancellor Sir J. L. K. Bruce sent the following case for the
opinion of this Goart.

*By indenture dated the 80th day of Septemher, 179.0, and rutoM
made between, and executed by, Alexander Collingwood of Un- ^
thank in the county of Northumberland, Esq., and Isabella Colling*
wood, spinster, second daughter of the said A. Collingwood by Margaret
his wife, of the first part, John Tarleton of Liverpool, Esq., of the

891 TARLETON v. LIDDELL. T. T. 1851.

second part, and Clayton Tarleton of Liverpool, Esq., and Tbomu
Collingwood of Gray's Inn, Esq., of the third part, one undivided
moiety of a manor and hereditaments in the county of Northumber-
land, therein particularly described, and hereinafter called «' The Col-
lingwood Estates," was conveyed anjd assured unto the said Claytou
Tarleton and Thomas Collingwood and their heirs. To the use of the
said Alexander Collingwood, his heirs and assigns, until a marriage
then intended between the said John Tarleton and Isabella Colling-
wood was duly had and solemnized; and, after the solemnization
*M^1 thereof. To *the use of the said John Tarleton and his assigns
^ for his life without impeachment of waste, with remainder to
the use of the said C. Tarleton and T. Collingwood and their heirs
during the life of the said John Tarleton, upon trust to preserve the
contingent uses and estates thereinafter limited from being defeased or
destroyed ; with remainder to the use of the said Isabella Collingwood
and her assigns for her life ; with remainder to the use of the said C.
Tarleton and T. Collingwood and their heirs during the life of the said
Isabella Collingwood (as before, to preserve contingent uses, &c.);
with remainder to the use of the first and other sons of the said John
Tarleton by the said Isabella his then intended wife successively in
tail male ; with remainder to the use of the daughters of the said John
Tarleton by the said Isabella his wife as tenants in common in tail gene-
ral with cross remainders between them ; with remainder to the use of
the said Alexander Collingwood, his heirs and assigns for ever.

The marriage between the said John Tarleton and Isabella Colling-
wood was dulyjiad and solemnized; and there was issue of the said
marriage, John Collingwood Tarleton the eldest son, and other children.
The said John Collingwood Tarleton attained the age of twenty-one
years before the 18th day of March, 1815.

At the time of the execution of the indentures of the 17th and 18th
days of' March, 1815, hereinafter stated, the said John Tarleton was
seised to him and his heirs for an estate of inheritance in fee simple of
and in the other moiety of the said Collingwood estates, and also of and
in the entirety of certain estates called the Ingram estates.

By indenture of bargain and sale, dated the 18th day of March,
♦3931 ^^^^' ^*^^y ©nrollc<i? 4c. (in the 'Common ♦Pleas, as of Easter
^ term, 55 G. 3), made between the said John Tarleton and Isabella
his wife of the first part, the said John Collingwood Tarleton of the
second part, William Ainge of the third part, and Robert Blake of the
fourth part, the said John Tarleton and Isabella his wife and the said
John Collingwood Tarleton did grant, bargain, sell, ratify, and confirm
unto the said William Ainge and his heirs the said undivided moiety
eomprised in the said indenture of settlement of the 80th day of Sep-
tember, 1790, of and in the said Collingwood estatesi To hold the same
unto and to the use of the said W. Ainge, his heirs and aaaigps for

17 ADOLPHUS & ELLIS. N. 8. 898

e^er, to the intent, &c. (that Ainge might become tenant of the free*
hold of the said moiety for the purpose of suffering a recovery, kc. ;
Robert Blake to be demandant, William Ainge tenant, and Isabella
Tarleton and J. C. Tarleton vouchees) ; which recovery when suffered
it was thereby declared, &c. (declaration that it should enure to such
uses, upon such trusts, intents, and purposes, and with, and subject te
sach powers, provisoes, &c., as were or should be expressed by the in-
denture of 18th March, 1815, next stated).

By indentures of lease and release dated respectively the 17th and
18th days of March, 1815, the release being made between the said
John Tarleton and Isabella his wife and the said John Gollingwood
Tarleton of the first part, the said John Tarleton of the second part,'
William Richard Cosway and Edward Thurlow of the third part, and
Edwa/d- Houghton and William Ainge of the fourth part, after reciting
the said indenture of bargain and sale of even date with the now stat-
ing indenture, and reciting that the said John Tarleton, Isabella his
wife, and John Gollingwood Tarleton, were severally desirous *of rmoq^
declaring the uses of the said undivided moiety intended to be '-
comprised in and conveyed by the aforesaid indenture of bargain and
sale and the said common recovery to be suffered in pursuance thereof
as aforesaid, and that the said John Tarleton was desirous of convey-
ing, settling, and assuring the said hereditaments of or to which. he was
seised or entitled for an estate of inheritance in fee simple to the uses
and upon the trusts thereinafter expressed and declared of and concern-
ing the same premises respectively. It was witnessed that, for effectu-
ating such intent and purpose as aforesaid, and for divers other good
and valuable causes and considerations, and for the nominal considera-
tion therein mentioned, he the said John Tarleton did grant, bargain,
sell, alien, release, and confirm unto the said W. R. Cosway and E.
Thurlow, and their heirs, all that the said undiv

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Full text of "Reports cases argued and determined in the English courts of common law : with tables of the cases and principal matters."

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